Mr Lee Oldcorn Mrs J Oldcorn v Southern Water Services Ltd
| Jurisdiction | England & Wales |
| Judge | Judge McKenna |
| Judgment Date | 09 March 2017 |
| Neutral Citation | [2017] EWHC 460 (TCC) |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Docket Number | Case No: HT-2015-000042 |
| Date | 09 March 2017 |
[2017] EWHC 460 (TCC)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
His Honour Judge McKenna
(Sitting as Deputy Judge of the High Court)
Case No: HT-2015-000042
and
Mr Neil Moody QC (instructed by Kennedys) for the Claimants
Mr Clifford Darton and Mr Paul Powlesand (instructed by Mayo Wynne Baxter Solicitors) for the Defendant
Hearing date: 28 February 2017
Judgment — Costs — Approved
On the 23rd January 2017 I handed down the main judgment in these proceedings [2017] EWHC 62 (TCC) and for the reasons set out in that judgment I dismissed the claim. The Claimants were successful on all the issues which fell for determination with the exception of causation, which was determinative of the outcome in the Defendants' favour.
The parties were unable to agree the costs consequences and I heard argument on the morning of the 28th February 2017 but due to time constraints I was unable to deliver judgement that morning and judgment was therefore reserved.
The Legal Framework
The starting point is CPR r44.2 which provides:
"(2) If the court decides to make an order about costs —
(a) the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party; but
(b) the court may make a different order.
(3)
(4) In deciding what order (if any) to make about costs, the court will have regard to all the circumstances, including —
(a) the conduct of all the parties;
(b) whether a party has succeeded on part of its case, even if that party has not been wholly successful; and
(c) any admissible offer to settle made by a party which is drawn to the court's attention, and which is not an offer to which costs consequences under Part 36 apply.
(5) The conduct of the parties includes —
(a) conduct before, as well as during, the proceedings and in particular the extent to which the parties followed the Practice Direction — Pre-Action Conduct or any relevant pre-action protocol;
(b) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;
(c) the manner in which a party has pursued or defended its case or a particular allegation or issue; and
(d) whether a claimant who has succeeded in the claim, in whole or in part, exaggerated its claim.
(6) The orders which the court may make under this rule include an order that a party must pay —
(a) a proportion of another party's costs;
(b) a stated amount in respect of another party's costs;
(c) costs from or until a certain date only;
(d) costs incurred before proceedings have begun;
(e) costs relating to particular steps taken in the proceedings;
(f) costs relating only to a distinct part of the proceedings; and
(g) interest on costs from or until a certain date, including a date before judgment.
(7) Before the court considers making an order under paragraph (6)(f), it will consider whether it is practicable to make an order under paragraph (6)(a) or (c) instead."
During the course of argument I was referred to a number of authorities including Phonographic Performance Limited v AIE Rediffusion Music Ltd [1999] 1 WLR 1507Summit Property Ltd v Pitmans (a firm) [2001] EWCA Civ 2020, Travelers Casualty and Surety Company of Canada and Others v Sun Life Assurance Company of Canada (UK) Ltd and another [2006] EWHC 2885 (Comm), Straker v Tudor Rose (A firm) [2007] EWCA Civ 368, Fox v Foundation Piling Ltd [2011] EWCA Civ 790 and the recent decision of Coulson J in Harlequin Property (SVG) Ltd and Another v Wilkins Kennedy (A firm) [2016] EWHC 3233 (TCC), all of which concern the often difficult questions that can arise when seeking to apply CPR 44.2 and all of which demonstrate the extent to which every case is fact specific. That said, it is right to note that in more recent times there has been a tendency to emphasise the general rule that the unsuccessful party should pay the successful party's costs so that for example in the case of Fox, Jackson LJ was moved to observe as follows at [62]:
" 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 r.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."
Discussion and Conclusions
The Defendants' position is that...
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Litigation
...are still many cases where a simple “costs follow the event” approach is warranted: see, eg, Oldcorn v Southern Water Services Ltd [2017] EWHC 460 (TCC). 1099 Amstrad plc v Seagate Technology Inc (1997) 86 BLR 34 at 68, per Judge LLoyd QC. 1100 Fleming v Chief Constable of Sussex Police For......
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Table of cases
...III.24.178, III.24.201 Oldcorn v Southern Water Services Ltd [2017] EWhC 62 (TCC) II.8.77 Oldcorn v Southern Water Services Ltd [2017] EWhC 460 (TCC) III.26.261 Oldield Knott Architects Pty Ltd v Ortiz Investments Pty Ltd [2000] WASCA 255 III.24.18, III.25.161 Oldham v Bushby (1914) 16 WALR......