Issues based and proportional costs orders: when should they be made?

Issues based and proportional costs orders

The Court was tasked with determining costs following a hard fought piece of commercial litigation in which the claimant was awarded US$5,388,312.08 of a US$63.5 million claim. Mrs Justice O’Farrell considered the various authorities and relevant principles to be applied when determining whether to make an issues based or proportional costs order before determining that the defendant should pay 85% of the claimant’s costs.

“both parties deployed a number of arguments in respect of each warranty claim and quantum. Every point was fought. Some points were stronger than others but none of the points argued was unreasonable or unarguable. Each party won and lost sub-issues in respect of each part of the case. But Triumph emerged as the victor with an award of substantial damages.”

The Court went on to award a payment on account of costs in the sum of £3 million.

“The recoverable costs, limited to 85% of its costs following a detailed assessment, will result in a substantial sum due to Triumph. The overall figures identified do not appear to be disproportionate to the claims. Having seen the volumes of factual and expert evidence in this case, including the large documents database, and having heard the trial, it does not come as any surprise that the estimated costs for one party exceed £6 million.”

TRIUMPH CONTROLS UK LTD & ANOR V PRIMUS INTERNATIONAL HOLDING COMPANY & ORS [2019] EWHC 2722 (TCC)