The claimant appealed against the costs order made after a trial following a road traffic accident, awarding blame as to 65% for the Claimant and 35% to the defendant. The Defendant had requested costs in that proportion. After reminding himself of CPR 44.34, the court awarded the Claimant 35% of his costs on liability. However the Order left the Defendant to pay his own costs. The appeal challenged the Order as a misdirection since the Claimant was the winner having established liability albeit with a substantial reduction for contributory negligence. The suggested appropriate course was a conventional order awarding him his costs. There was nothing before the judge to justify depriving him of 65% of his costs. On appeal the defendant argued that each party had a damages claim arising from the accident. Only by chance was the Claimant ‘first off the grid’. The order left the Claimant to recover 35% and the Defendant 65% of their respective costs. Though there was no counterclaim, the Defendant had a claim which stood by. Had there been a formal counterclaim, it was submitted, the judge could have awarded to the Claimant/Appellant the costs of the claim and to the Defendant/Respondent those of the counterclaim.
Held: The appeal was dismissed. The court considered Medway Oil and Storage Company Ltd v Continental Contractors Ltd and Ors [1929] AC 88 where the court allowed that absent a direction by the court on apportionment any such order made on detailed assessment will produce injustice where a like issue arises on claim and on counterclaim. A court would be justified in apportioning costs. The judge had recognised that the outcome of the issue as to liability was determinative both of claim and of counterclaim and that the award as he made it was within his discretion.
Judges:
Rix LJ
Citations:
[2009] EWCA Civ 883, [2010] PIQR P1
Links:
Jurisdiction:
England and Wales
Citing:
Cited – Medway 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:
Cited – Horth 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 . .
Lists of cited by and citing cases may be incomplete.
Costs, Personal Injury
Updated: 09 December 2022; Ref: scu.374417
