26.04.2012Specsavers International Healthcare Ltd.; Specsavers BV; Specsavers Optical Group Ltd.; Specsavers Optical Superstores Ltd. v Asda Stores Ltd.  EWCA Civ 494
Key areas: both parties win some issues;party’s conduct; Court of Appeal
This was a hearing to determine issues arising from the Claimants’ successful appeal against a refusal to grant an injunction, including costs. The main action was concerning a breach of copyright.
There was an initial argument over whether to reserve costs pending an appeal to the Supreme Court. However, this was refused.
The Claimants submitted that they was the overall winners, and should be entitled to its costs, excluding those relating to its unsuccessful appeal, and the issue which had been referred to the ECJ. It submitted that this worked out at 61.7% to be determined now, with a further 18.7% to be subject to the outcome of the ECJ proceedings.
The Defendant submitted that the Claimants had obtained very little, and so the parties should bear their own costs.
The Court held that the Claimants had won some issues, and had successfully defended a cross-appeal, but they had lost some issues. It also noted that the Claimants had beaten the Defendant’s Part 36 offer, but they did not attempt to negotiate with the Defendants.
In the circumstances, the Court held that the Claimants’ costs should be reduced to reflect their refusal to negotiate. Overall, the Claimants were awarded 40% of their costs relating to the appeal, taking into account the costs relating to the ECJ referral. In addition, it considered that 16% of the costs related to the ECJ.
In relation to the first-instance costs, the Claimants submitted that 78.5% related to the issues upon which they won, with 5.5% covering the ECJ. The Defendant again submitted that there should be no order as to costs.
In the circumstances, the Court awarded the Claimants 50% of their first-instance costs, with a further 6.5% to be dealt with after the ECJ’s ruling.
26.04.2012Lilleyman v Lilleyman; Lilleyman  EWHC 1056 (Ch)
Key areas: Part 36 offer; party’s conduct; High Court
In April 2011, the Claimant made a Part 36 to offer to settle for £600,000 plus two properties (“Water Meadows” and “Lea Court”) to be transferred into her name, her interest in a further property to be released, and for the deceased’s chattels to also be released.
On 27th July 2011, the Defendants made a Part 36 to offer to settle for £450,000, the two properties and £18,000 for the chattels. They also made a without prejudice offer to buy her interest in the further property for £30,000 and for a total of £568,000 including costs.
The Claimant made further without prejudice offers in 2011.
In January 2012 the Defendant made a further without prejudice offer of £538,000, including costs. The offer referred to the July 2011 offer and stated that “our clients withdraw that offer”. The Claimant submitted that this withdrew the Part 36 offer, but the Defendant submitted that on a plain reading it simply meant the without prejudice offer. The Court agreed with the Defendant.
As a result, the Court held that the Claimant failed to beat the Defendants’ Part 36 offer at trial.
Taking into account the facts of the case, the Court held that it was not unjust for the Claimant to pay the Defendants’ costs after the offer had expired, but given the parties’ conduct, she should only pay 80% of those costs.
26.04.2012Tibbles v SIG Plc (t/a Asphaltic Roofing Supplies)  EWCA Civ 518
Key areas: small claims; re-allocation; Court of Appeal
This was a second appeal over whether costs incurred on the Small-Claims Track, and was later re-allocated to the Fast-Track should be assessed under the normal Fast-Track costs rules.
The Claimant had incurred £20,000 in costs prior to re-allocation. However, when the case was re-allocated the Judge did not make an Order stating that Small Claim costs rules did not apply. Furthermore, the Claimant did not make an Application to vary the costs rule until after the case had settled, and only did so during Detailed Assessment of his costs.
At first instance, the Claimant submitted that under CPR 3.1(7) the Court has the power to vary its own order, and this was granted. However, this was overturned on appeal on the grounds that the Judge lacked jurisdiction.
The main action was a personal injury claim which settled for £1,500.00, before contributory negligence was taken into account. At Allocation stage, both parties agreed that the Fast-track was the appropriate track for this claim. However, the Judge allocated it to the Small claims track. The Claimant applied to set aside this Order, and the Defendant did not object, but the Judge refused to do so, instead re-allocating the case.
The case ultimately settled, and in its Points of Dispute the Defendant submitted that the Small Claims costs should apply before re-allocation. This led to the Claimant issuing its Application to vary.
The Court of Appeal considered the existing caselaw, and noted that being “prompt” was a major factor in a situation such as this. The Claimant had taken 14 months to dispute the Order; such a delay would prejudice the Defendant given the amount of costs at stake; there was no new evidence in the Claimant’s favour as to why such a delay was justified.
Overall, the Court held that the facts did not justify allowing the Claimant permission to alter the Order.
23.04.2012Mason & Ors v Mills & Reeve (A Firm)  EWCA Civ 498
Key areas: party’s conduct; both parties win some issues; mediation; Court of Appeal
This was an appeal by the Claimant against a failed claim for professional negligence, with a cross-appeal by the Defendant against an order only allowing it 50% of its costs.
The Appeal was dismissed.
At first instance, the Judge made an issues-based costs order and also took into account the parties’ conduct. The Defendant had refused mediation, on the grounds that the claim was without merit, and had made a “drop-hands” offer. The Judge considered that had mediation taken place that there was more of a chance of the case settling, and that even if it was not likely to settle, did not justify the Defendant’s outright refusal. As a result, the Defendant was only awarded 60% of its costs.
On appeal, the Defendant submitted that the issues did not justify such a large reduction in its costs, while the Claimant submitted that the Order was correct.
The Court held that costs of one specific item should be disallowed, because it was simply a “fishing expedition” by the Defendant.
However, the Court stated that it was wrong to reduce the Defendant’s costs by way of its conduct: the Claimant had made a Part 36 offer to settle for £750,000 against the Defendant’s offer to walk-away. The Parties were too far apart for mediation to be realistic.
Overall, the Court allowed the Defendant’s cross-appeal, awarding it 60% of its costs at first instance.
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