Grosvenor v High-Point Rendel Group Plc
| Jurisdiction | England & Wales |
| Judge | His Honour Judge Peter Coulson QC |
| Judgment Date | 30 September 2004 |
| Neutral Citation | [2004] EWHC 2407 (TCC) |
| Docket Number | Claim No: HT-03-438 |
| Date | 30 September 2004 |
| Court | Queen's Bench Division (Technology and Construction Court) |
[2004] EWHC 2407 (TCC)
IN THE HIGH COURT OF JUSTICE
TECHNOLOGY AND CONSTRUCTION COURT
QUEEN'S BENCH DIVISION
His Honour Judge Peter Coulson QC
Claim No: HT-03-438
Mr James Aldreidge (instructed by Fenwick Elliott) for the claimant
Mr Akash Nawbatt (instructed by Mace and Jones) for the defendant
Hearing date: 29 July 2004
JUDGMENT ON COSTS
Approved Judgment
INTRODUCTION:
On 29 July 2004, I handed down judgment in this case. Pursuant to that judgment, the claimant recovered a total of £1,644.38p including VAT and interest, which was about 2 per cent of the gross sum that he had claimed. The parties are now in dispute about costs. This dispute was rehearsed briefly in court on 29 July 2004, and since then I have been provided with full written submissions by both sides. The claimant seeks the whole of his costs from the defendant because he claims to be the successful party; he relies principally on the absence of a CPR Part 36 offer and/or a Part 36 payment. The defendant, on the other hand, contends that the claimant should pay the vast bulk of their costs because of their substantial success on the issues, and because of the claimant's rejection of their written offer dated 14 January 2004.
THE RELEVANT PRINCIPLES
It seems to me that, to exercise my discretion pursuant to CPR Part 44.3, there are three matters which I must consider when reaching my decision on costs. They are the identity of the successful party in this litigation (including a consideration of success on the individual issues); the effect of the various offers made by the parties; and the conduct of the parties. I therefore deal with each of those matters in turn.
WHO IS THE SUCCESSFUL PARTY?
There can be no doubt in my judgment that it was the defendant who was the successful party in this litigation. The defendant defeated all the claimant's claims based on an entitlement to commission before 1 August 2000, as well as all the claimant's claims based on an entitlement to commission after August 2001. The defendant also defeated the claim for post-termination commission and the claim for a declaration. As regards the five individual claims for commission itself, the defendant was successful in defeating the two principal claims for commission, in respect of Pfizer and BTP, as well as the smaller claim relating to the NAO.
Of the two small claims on which the claimant was successful, I note that the claim in respect of Burges Salmon was admitted by the defendant during the trial, whilst the disputed claim in respect of SJ Berwin was worth just £165.95p. In all the circumstances, therefore, it is contrary to common sense for the claimant, who recovered no more than 2 per cent of the total sum claimed, to try to describe himself as the successful party.
For these reasons, therefore, it seems to me that, on an application of the issue-by-issue approach discussed in Summit Property Ltd v Pitmans [2001] EWCA Civ 2020, and cited in the Civil Procedure commentary at CPR 44.3.1, the defendant would be entitled to the costs of Issues 1, 2, 3, 5 and 6, as set out in my judgment of 29 July 2004, and the bulk of the costs of Issue 4.
The claimant contends that an issue-based costs order should only be made in exceptional cases and reliance is placed on the decision in Summit. I consider that argument to be a misreading of paragraph 17 of the judgment of Longmore LJ in that case. The exceptional situation discussed in that paragraph is a situation where a court chooses to deprive a successful party of his costs of a particular issue and also makes him pay the otherwise unsuccessful party's costs on that issue. That is not the case here. Furthermore, Summit is authority for the proposition that issue-based costs orders can be appropriate, depending on the facts of the case in question. Indeed, following the introduction of the new Civil Procedure Rules, there have been a number of decisions in which the courts have stressed the importance of issue-based costs orders. In particular, in Phonographic Performance Ltd v AIE Reduffusion Music Ltd [1999] 1 WLR 1507, the then Master of the Rolls, Lord Woolf said, at page 1522H:
"The most significant change of emphasis of the new rules is to require courts to be more ready to make separate orders which reflect the outcome of different issues. In doing this the new rules are reflecting a change of practice, which has already started. It is now clear that a too-robust application of the 'follow the event principle' encourages litigants to increase the costs of litigation, since it discourages litigants from being selective as to the points they take. If you recover all your costs as long as you win, you are encouraged to leave no stone unturned in your effort to do so."
Since the issues in this case were clear and well defined, and because they involved little or no overlap, I consider that this is a case where an issue-based costs approach is appropriate. It follows that such an approach would lead to orders very much in the defendant's favour. Success on the Issues, however, is only one of the factors to be considered under CPR Part 44.3 and it is now necessary to consider the other two.
THE OFFERS
The claimant made two without prejudice offers to the defendant. On 20 November 2003, the claimant said that he would accept the sum of £47,500, inclusive of VAT and costs, in order to settle his claim. Seven months later, on 10 June 2004, (three weeks before trial), the claimant said that he would accept £50,525, plus payment of his costs, in order to settle his claim. In the event, of course, the claimant failed to recover anything like the sums identified in his offer letters. It seems to me that, when exercising my discretion on the question of costs, I should have regard to the fact that, at both the beginning and end of this litigation, the claimant's expectations were unreasonably excessive. To put the point another way, it seems...
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Contract terms
...in cases where a contract is partly or wholly oral, the parol evidence rule has no application. 792 Grosvenor v High-Point Rendel plc [2004] EWHC 2407 (tCC) at [32]–[33], per HHJ Coulson QC. 793 Brambles Holdings Ltd v Bathurst City Council (2001) 53 nSWLr 153 at 163–165, per Heydon Ja. See......
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Table of cases
...I.3.14, I.3.38, II.6.283, II.7.64 Grogan v hiess Contractors Pty Ltd [2000] NSWSC 1101 III.26.316 Grosvenor v High-Point Rendel plc [2004] EWHC 2407 (TCC), EWHC 3057 (TCC) I.3.197, III.26.261, III.26.298 Grosvenor Constructions (NSW) Pty Ltd v Musico [2004] NSWSC 344 III.24.219 ccxxvii TaBL......