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Claimants who fell at last hurdle ordered to pay costs

Posted on March 16, 2017

Claimants who won on every aspect of their claim, except – crucially – that of causation, have lost their bid to avoid an order that they pay the successful defendant’s costs.

Oldcorn and Anor v Southern Water Services Ltd [2017] EWHC 460 (TCC) concerned a claim over whether the defendant caused the flood damage suffered by the claimants.

His Honour Judge McKenna, sitting as a deputy judge of the High Court, found for the claimant on all the issues which fell for determination with the exception of causation, which meant the defendant ultimately won.

The claimants argued that their success on the other issues justified a different order under CPR rule 44.2(4)(b).

The defendants submitted that the “mere fact” they lost on certain issues did not necessarily make a departure appropriate, particularly since they a significant interest in clarifying the legal basis on which the claim could be made.

Judge McKenna quoted Lord Justice Jackson’s comments in Fox v Foundation Piling Ltd [2011] EWCA Civ 790, when he said: “There has been a growing and unwelcome tendency by first-instance courts and, dare I say it, this court as well, to depart form the starting point set out in CPR rule 44.3(2)(a) too far and too often.

“Such an approach may strive for perfect justice in the individual case, but at huge additional cost to the parties and at huge costs to other litigants because of the uncertainty which such an approach generates. This unwelcome trend now manifests itself in (a) numerous first-instance hearings in which the only issue is costs and (b) a swarm of appeals to the Court of Appeal about costs, of which this case is an example.”

Judge McKenna said that while, the claimants’ submissions were “superficially attractive”, the case was akin to that of the personal injury action referred to by Jackson LJ in Fox, “where, as he pointed out, the fact that a claimant has won on some issues and lost on other issues on the way, is not normally a reason for depriving the claimant of part of his costs”.

He found “much force” in the defendants’ submission that it was reasonable to take the points they did. “In my judgment, this is not a case where justice would manifestly not be done if I made no allowance for the issues relied on by the claimants where ultimately I found against the defendants. This is, therefore, not a case where it would be appropriate to depart from the general rule.

“I am reinforced in this view by the knowledge that, in April 2016, the defendants offered a drop-hands settlement; an offer which was rejected by the claimants, who pressed on to trial and ultimately lost of the issue of causation.”

This post was posted in ACL e-Bulletin