Burchell v Bullard and others: CA 8 Apr 2005

Each side had succeeded in part on their claims and counterclaims, but the Respondent was andpound;5,000 out of pocket. Each party had been ordered to pay the costs of the other.
Held: The appeal succeeded. The judge had correctly recognised the difficulty of settling costs on an issue by issue basis, but should have considered alternatives to the route taken, and ‘Ordering a proportion of costs obviates all the difficulties he acknowledged in an assessment of how much is properly to be allocated to each and every issue considered in isolation. Better by far to decide, despite the difficulty and imprecision of the calculation, that the relevant issue or issues should bear a percentage of the costs taken overall.’
Ward LJ said: ‘Appeals against orders for costs are notoriously difficult to sustain. That is because the trial judge has a wide discretion with the result that this court will only interfere with his decision if he has exceeded the generous ambit within which there is usually much room for reasonable disagreement or because, even more unusually, he has erred in principle . . Once the recorder had decided to enter judgment on the claim and the counterclaim separately and not to set off one against the other, then to take as his starting point that costs should follow the event on each on claim and counterclaim is understandable. It is, however, only the starting point. In any event he said, ‘It will make no difference as to costs.’ He was also correct to direct himself that the court’s wide discretion had to be exercised so as to ensure that the case was dealt with justly.’


Ward LJ


[2005] EWCA Civ 358, [2005] 3 Costs LR 507, [2005] BLR 330




Civil Procedure Rules 44.3


England and Wales


CitedHalsey v Milton Keynes General NHS Trust etc CA 11-May-2004
The court considered the effect on costs orders of a refusal to take part in alternate dispute resolution procedures. The defendant Trust had refused to take the dispute to a mediation. In neither case had the court ordered or recommended ADR.
ConfirmedMedway Oil and Storage Co Ltd v Continental Contractors Ltd HL 1929
The court set down the principles to be applied when apportioning costs between a claim and counterclaim. Where both the claim and the counter-claim are dismissed with costs, the amount that the Claimant will recover in defeating the counter-claim . .

Cited by:

CitedHorth v Thompson QBD 6-Jul-2010
After a personal injury claim, the judge had apportioned liability and ordered each side to pay the costs of the other. The case had been allocated to the fast track.
Held: The appeal failed. The existence of the Conditional Fee Agreement did . .
CitedRolf v De Guerin CA 9-Feb-2011
The parties had disputed a building contract. A Part 36 offer had been made by the builder defendant, but the judgment was for rather less, and the judge awarded the claimant her costs.
Held: The court exercised its discretion to set aside the . .
Lists of cited by and citing cases may be incomplete.

Costs, Construction

Updated: 29 June 2022; Ref: scu.224081