Where a party wished to put the other at risk of payment of costs by the making of an offer, it was vital that the other party should be made properly aware of any information available to decide on the offer. Under the new regime, it was not appropriate to hold back such information, and a party who did so risked losing his costs even if the payment in would otherwise meet the criteria. The Claimant recovered less damages than the amount of the payment into Court, but the Defendants were ordered to pay the whole of the Claimant’s costs, including those incurred after the date of the payment in.
Held: ‘the judge reaching his decision about costs is required to take into account all relevant aspects of the litigation.’ The order was justified in the circumstances of that case, in particular because of the late introduction of evidence by the Defendants which had the effect of reducing the amount of the judgment below that of the payment in. ‘Indeed, [the judge’s] judgment has served to underline [not ‘undermine’] the importance, rightly and increasingly, to be attached to civil litigation being conducted openly between the parties with the real issues between them efficiently and quickly identified and investigated without, as it now seems to me, any unfairness to these defendants in this case.’ (Woolf MR) ‘I also draw attention to the fact that the rules refer to the power of the court to make other orders and make it clear that the normal cost consequences of failing to beat the sum paid in does not apply when it is unjust that it should do so. If a party has not enabled another party to properly assess whether or not to make an offer, or whether or not to accept an offer which is made, because of non-disclosure to the other party of material matters, or if a party comes to a decision which is different from that which would have been reached if there had been proper disclosure, that is a material matter for the court to take into account in considering what orders it should make.’ Judge LJ: ‘Civil litigation is now developing into a system designed to enable the parties involved to know where they stand in reality at the earliest possible stage, and at the lowest practicable cost, so that they …. may make informed decisions about their prospects and the sensible conduct of their cases. Among other factors the judge exercising his discretion about costs should consider is whether one side or the other has, or has not, conducted litigation with those principles in mind.’
Judge LJ, Woolf MR
Times 05-Nov-1999,  1 All ER 802,  EWCA Civ 3030
England and Wales
Cited – Amber v Stacey CA 15-Nov-2000
The defendant challenged an order that he should pay the plaintiff’s costs, having made an offer in correspondence which was not accepted.
Held: The claimant had exaggerated his claim, but the defendant’s offer had been inadequate. The judge’s . .
Cited – Douglas and others v Hello! Ltd and others ChD 23-Jan-2004
Lists of cited by and citing cases may be incomplete.
Costs, Civil Procedure Rules
Updated: 19 May 2022; Ref: scu.80630