COURT MAKES 5% REDUCTION IN SUCCESSFUL CLAIMANT’S COSTS RATHER THAN AN ISSUE BASED COSTS ORDER
This is the fourth look this blog looks at the judgment in Essex County Council v UBB Waste (Essex) Ltd (No. 3) [2020] EWHC 2387. This time we are looking at the question of whether there should be a deduction in the claimant’s costs following the defendant being successful on some issues. A deduction was ordered, but for a small amount and for a limited period.
It is worth noting that the fact that the claimant made a successful Part 36 offer was of some importance on this issue. The 5% deduction that the judge ordered in relation to the claimant’s recoverable costs was only up to the date of the expiry of the claimant’s Part 36 offer.
THE CASE
The judge had given judgment for £8 million following a trial. This hearing related to costs. The defendant had failed to beat a Part 36 offer made by the claimant. The defendant had been successful, to a small degree (recovering 0.8% of the sums it had sought by counterclaim). The judgment considers whether a deduction should be made to reflect the defendant’s “success”, and what it should be.
THE JUDGMENT ON THIS ISSUE
7. SHOULD THE COURT RECOGNISE UBB’S PARTIAL SUCCESS?
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Mr Stewart argues that the court should recognise UBB’s success in recovering compensation for the cessation of delivery of waste in 2017 by reducing the award of costs in the Authority’s favour to 90%. He supports his argument by pointing to the time taken at trial upon the issue and reminding me that the percentage reduction should reflect not just some credit for UBB’s costs but also the disallowance of the Authority’s costs upon the issue.
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Mr Taverner argues that any costs order should simply be an issue-based costs order, alternatively that the percentage reduction in the Authority’s costs should be less than 10%. He points to the fact that UBB’s success on this issue meant that it recovered 0.8% of the sums sought by its counterclaim.
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DISCUSSION
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Of course, the simple fact that the Authority was not successful on every issue does not of itself mean that the court should deprive it of some proportion of its costs. Nevertheless, I accept that the cessation of deliveries was a discrete issue that involved its own disclosure and a number of witnesses who had no relevant evidence to give in respect of the main issues between the parties. Accordingly, I consider that in principle UBB should have its costs of this issue.
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I accept Mr Stewart’s argument that the most appropriate way to give effect to UBB’s partial success on its counterclaim is not, however, to make an issue-based costs order, but instead to make some proportionate reduction in the costs recovered by the Authority. Indeed, the court is sensibly enjoined by r.44.2(7) to prefer a percentage order over an issue-based costs order. As Pumfrey LJ observed in Monsanto Technology LLC v. Cargill International SA [2007] EWHC 3113 (Pat), [2008] F.S.R. 16, such approach will necessarily lack any degree of mathematical precision. It does, however, have the significant benefit of avoiding the cost and complexity of seeking to untangle costs on an issue-by-issue basis in detailed assessment proceedings.
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In fixing the appropriate percentage, I take into account the following factors:
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