Costs News

16 March 2017
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Claimants who fell at last hurdle ordered to pay costs

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


Sue Nash   25/09/2017 at 20:56

It appears that RNB is set for a HC appeal - watch this space! Meanwhile, RIP Solicitors Journal which - sadly - has just ceased publication after 180 years

News Flash   28/09/2017 at 12:18

Another pointless case, why resist a payment on account when your paying the opponents costs in the end anyway? these types of disputes should be a thing of the past!

MB   05/10/2017 at 13:18

Why has the focus returned to the SCCO "going completely digital". Was the electronic bill not extended to all Courts!

Dragon   12/10/2017 at 13:40

Well said Jim. Too often we see clinical negligence claims settle for say £2k only to be followed by a bill for say £50k. Thankfully there are some excellent costs lawyers out there who battle those costs down, but the situation remains outrageous.

Simon Mccarthy   13/10/2017 at 13:56

Dragon - your comment overlooks the fact that it is almost invariably your clients - the Defendants - who cause those scandalous costs by intransigently, and inexplicably, refusing to come to the negotiating table until too late, when the costs have already been racked up; it is their failure to take a realistic view to claims at the outset which necessitates the costs. This faux horror is therefore hard to stomach, especially when one considers the equivalent costs being incurred by government bodies (funded by us tax payers of course) often to the tune of 4-5 times the sums you mention, and the many Defendant costs draftsmen shelling peas for their piece of the pie. Sadly, it is the same old story of 'pay peanuts get monkeys' and, unless and until government wake up and start paying competent people to deal with claims pragmatically, the UK public purse will continue to haemorrhage billions of pounds that we can ill afford. Still, as long as it keeps Defendant costs draftsmen/lawyers in business?....

Northern Costs Monkey   13/10/2017 at 14:31

Just shows how ridiculous the whole budgeting process is. The reason firms generally don’t make applications to revise their budgets is because the bar set for varying them is absurdly high. No one even knows what a “significant development” is. A load of nonsense in my opinion. The situation we have now is that firms just don’t bother revising the budgets because in all likelihood it won’t be accepted. Meaning firms can be stuck with an “approved” budget that is a couple of years out of date, was drafted before the directions were even agreed, and is no longer fit for purpose. What should happen is that budgets should be drafted after the first CMC, and there should be a rule put in place that parties are able to freely revise a previously agreed or approved budget every six months, regardless of significant developments, with the updated budget to be considered at a costs management conference listed for a later date. That after all was the whole point of budgeting, was it not? Pragmatic costs management?

Simon   16/10/2017 at 16:47

I find this whole issue completely unnecessarily. Independent Midwives had commercial insurance suitable for their needs, however to try and save money they chose to try and become self-funding and cancelled their insurance without fully understanding the risks and exposures. I cannot see why it is in the public interest to bring a JR (and why the costs should be capped) when commercial solutions were available, however the issue is that as a group they didn't want to pay the costs of commercial insurance.

Dragon 2   18/10/2017 at 08:07

Great points Simon. Fully agree. Courts are fully aware of how these matters are conducted by those representing defendant. Surely though the money for damages and costs comes out of the medical suppliers' insurers' account, not tax pot nor nursing fund. Maybe that's why there is such a drive to extend the fixed costs regime to clin neg claims. Just a thought......

Mel B   19/10/2017 at 12:05

'Like' Simon McCarthy's comment

Cath Hart   21/10/2017 at 09:32

In reply to Simon's comment (which I thought at first meant this situation could be resolved) my understanding is that professional indemnity insurance for independent midwives has been withdrawn, but even if available the premium would be in the region of 20-30k annually (reference so I would disagree that it was cancelled to "save money" - these premiums exceed many of the midwives salaries so it was simply unworkable without government assistance. When professional indemnity insurance became mandatory under the EU directive in 2014 the independent midwives did appeal to the government for funding but this was rejected due to the low number of women involved so was not thought to represent value for money for the taxpayer. (reference:

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