“…even if the more flexible approach contended for by the Claimant is applied, I do not consider it realistic to argue that the Claimant did better at trial than the offer. By going to trial he recovered £371,258.36 less in damages than the offer. Although by going to trial he also secured the peace of mind of the provisional damages for epilepsy, I accept the Second Defendant’s arguments that the additional £371,258.36 in the offer accommodated that claim. It follows that the Claimant did not beat the offer of £3,550,000 or the Second Defendant’s last offer £4,000,000.”
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Following trial of a dispute about covenants in contracts, under which the claimant sought payment from the defendant, the Judge declared that on a true interpretation of the covenants no liability for payment had yet arisen.
In addition to the “interpretation issue” the defendants also run a series of other defences, including fraudulent misrepresentation, conspiracy, estoppel, title to sue, and allegations that the original sales had been part of an unauthorised collective investment scheme.
These other defences failed.
In this short judgment Mr Justice Cavanagh declined to make an issue-based costs order despite the claimant having been unsuccessful in two parts of his claim on the basis that the evidence which he had obtained and presented in support of these had not been wasted.
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.
This was a costs decision following determination of 23 common issues between the parties in group litigation between several hundred sub-postmasters and The Post Office. It dealt with a number of issues, including:
Whether the costs of the Common Issues should be reserved;
Who should pay the costs of the Common Issues and in what proportion;
Whether the costs be assessed on the standard or on the indemnity basis;
An application for an interim payment on account; and
Timing of the detailed assessment of the costs.
So, you’ve recovered £700,000. But you were claiming £38m. Who really won?
Sir Antony Edwards-Stuart found that the claimant’s recovery in this case whilst “not, of itself, nominal … was a tiny fraction (about 2%) of the sum claimed” and amounted to, at best, a pyrrhic victory. Following an examination of various authorities on the subject of identifying the true winner in cases where the claimant has recovered a small fraction of the amount sought, he determined that the defendant should pay just 20% of the claimant’s costs.
Part 36 did not preclude a judge from making an issue-based or proportionate costs order where a claimant had only succeeded on some issues. However, the constraints of Part 36 meant that it would be reasonable to deprive a claimant all or part of their costs only if it would be unjust to order otherwise, having regard to “all the circumstances of the case”