MAKING AN "APPORTIONED" COSTS ORDER: A CLAIMANT WHO RECOVERS LESS THAN THEY ARE ASKING IS NOT A "LOSER"

December 4, 2014 · by · in Applications, Civil Procedure, Costs

It is more common for a judge to “apportion” costs at the end of a trial to reflect the merits of the case and the “success” of each party. In Trant -v- Stokes (o3/12/2014 CA)* the Court of Appeal overturned a decision of the trial judge that the claimant should pay a defendant a substantial part of his costs.  It was held that a claimant who failed to recover all they were claiming could rarely be viewed as a “losing” party. The general rule was that a successful claimant would recover costs.

THE FACTS

  • The claimant alleged the defendant owed her £192,500 which was owed immediately.
  • The defendant admitted he owed £96,000 but stated that the sum was not due until the house was wold.
  • On the second day of the trial the defendant admitted that the sum owed was £115,700 but denied the labance was due.
  • The matter then proceeded for a further four days.
  • The judge held that the £115,700 was due but the claimant was a dishonest witness.

THE COSTS ORDER AT FIRST INSTANCE

  • The defendant was ordered to pay the costs of an earlier application and of the first day of trial. Thereafter the claimant was ordered to pay five-sixths of the defendant’s trial costs.

THE COSTS ORDER IN THE COURT OF APPEAL

The Court of Appeal held that the judge placed too much emphasis on there having been no dispute on the defendant’s part after the second day of the trial.

  • The defendant had never admitted the sum due and it was necessary to issue proceedings to recover the sum awarded.
  • In general it was not the case that a claimant who recovered less than they had sought should be considered an unsuccessful claimant.
  • The judge was in error in regarding the fact that the defendant had successfully resisted a sum larger than £115,700 as a success. This was a misdirection that vitiated the decision.
  • There was no basis for an order which so completely reversed the indication in CPR r.44(2)(2).
  • The claimant had to bring the defendant to trial to recover anything and, until half way through the second day, that amount had not been admitted.

THE APPROPRIATE ORDER FOR COSTS

The appropriate order was that the defendant pay the claimant’s costs of the action, disallowing the costs of the last two days because she had failed on the largest issue over those two days.

* Reported today on Lawtel. This note is based on the Lawtel summary.

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