Swallowfalls Ltd (Applicant/Claimant) v Monaco Yachting & Technology Sam (Respondent/Defendant)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Walker |
| Judgment Date | 15 February 2013 |
| Neutral Citation | [2013] EWHC 4050 (Comm) |
| Court | Queen's Bench Division (Commercial Court) |
| Docket Number | Case No: 2011/168 |
| Date | 15 February 2013 |
[2013] EWHC 4050 (Comm)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Rolls Building
7 Rolls Building
Fetter Lane
London EC4A 1NL
Mr Justice Walker
Case No: 2011/168
Mr M Fealey (instructed by Gibson Dunn & Crutcher) appeared on behalf of the Claimant
Mr S Hofmeyr, QC (instructed by MFB solicitors) appeared on behalf of the Defendant
Mr Hofmeyr seeks an order that the costs of each of the three applications, which have now been decided, should be paid by the claimant to the defendants. He notes that the starting point is that generally costs follow the event; the losing party will be ordered to pay the costs of the unsuccessful party. That is what is stated in CPR 44.3(2).
The question as to "which party is to be viewed as the successful party" should be determined by reference to the litigation as a whole. In that regard, Mr Hofmeyr relies on an example, the case of Kastor Navigation v AGF MAT [2004] 2 Lloyds Rep 119 and what was said by Lord Justice Rix at paragraph 143 of his judgment in that case.
It should be approached in a realistic and commercially sensible way. Again, Mr Hofmeyr cites an example. On this occasion it is Islam v Ali [2003] EWCA Civ 612, where Mr Hofmeyr refers to what was said at paragraphs 23 and 24 by Lord Justice Auld.
A discussion of this aspect of the rules on costs, which Mr Hofmeyr submits has regularly been cited and followed, is found in paragraphs 10 and 11 of the judgment of Mrs Justice Gloster in HLB Kidsons v Lloyds Underwriters [2007] EWHC 2699 (Comm). What was said by Mrs Justice Gloster in those paragraphs was this:
10. The principles applicable as to costs were not in contention. The court's discretion as to costs is a wide one. The aim always is to "make an order that reflects the overall justice of the case" ( Travellers' Casualty v Sun Life [2006] EWHC 2885 (Comm) at paragraph 11 per Clarke J. As Mr. Kealey submitted, the general rule remains that costs should follow the event, i.e. that "the unsuccessful party will be ordered to pay the costs of the successful party": CPR 44.3(2). In Kastor Navigation v Axa Global Risks [2004] 2 Lloyd's Rep 119, the Court of Appeal affirmed the general rule and noted that the question of who is the "successful party" for the purposes of the general rule must be determined by reference to the litigation as a whole; see paragraph 143, per Rix LJ. The court may, of course, depart from the general rule, but it remains appropriate to give "real weight" to the overall success of the winning party: Scholes Windows v Magnet (No 2) [2000] ECDR 266 at 268. As Longmore LJ said in Barnes v Time Talk [2003] BLR 331 at paragraph 28, it is important to identify at the outset who is the "successful party". Only then is the court likely to approach costs from the right perspective. The question of who is the successful party "is a matter for the exercise of common sense": BCCI v Ali (No 4) 149 NLJ 1222, per Lightman J. Success, for the purposes of the CPR, is "not a technical term but a result in real life" ( BCCI v Ali (No 4) ( supra)). The matter must be looked at "in a realistic … and … commercially sensible way": Fulham Leisure Holdings v Nicholson Graham & Jones [2006] EWHC 2428 (Ch) at paragraph 3 per Mann J.
11. There is no automatic rule requiring reduction of a successful party's costs if he loses on one or more issues. In any litigation, especially complex litigation such as the present case, any winning party is likely to fail on one or more issues in the case. As Simon Brown LJ said in Budgen v Andrew Gardner Partnership [2002] EWCA Civ 1125 at paragraph 35: "the court can properly have regard to the fact that in almost every case even the winner is likely to fail on some issues". Likewise in Travellers' Casualty ( supra), Clarke J said at paragraph 12:
"If the successful Claimant has lost out on a number of issues it may be inappropriate to make separate orders for costs in respect of issues upon which he has failed, unless the points were unreasonably taken. It is a fortunate litigant who wins on every point."
Mr Hofmeyr submits that his client has been successful on the three applications which have now been decided by the court. Those applications are the claim by Swallowfalls for summary judgment, the claim by Swallowfalls for an interim payment and the claim by the defendants that the proceedings should be stayed.
In my view, it would be superficial simply to look at the three applications and conclude that the defendants have been the successful party in relation to all applications. I say that because the apparent...
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