Papaspyrou & Anor v Gredley & Anor

Costs are not determined by identifying a single winner or by treating multi-issue litigation as a draw. Under CPR 44.3(4)(b), the court must consider all the circumstances, including partial success, the issues requiring adjudication, concessions, time spent and the overall outcome. Appellate intervention in a costs discretion is justified only for an error of principle or an exercise of discretion that is plainly wrong. The financial importance of one issue does not necessarily control the costs assessment.

Following a trial before His Honour Judge Rich QC at the Central London County Court, the defendants applied for permission to appeal a costs order requiring them to pay 75 per cent of the claimants’ costs. The underlying action concerned claimed rights over a mews road, a parking right, gates, a gas meter and damages. The claimants established pedestrian and vehicular rights of way and secured removal of the gas meter, but failed on parking and damages; the gates issue was no longer live. The central issue was whether the judge’s costs discretion was reviewable.

1. Lord Justice Pill, with Lord Justice Clarke agreeing, refused permission to appeal.
2. The costs jurisdiction involves a broad discretion. In applying CPR 44.3(4)(b), the court must consider all the circumstances, including whether a party succeeded in part. It is inappropriate to reduce the result to a simple winner-and-loser analysis or to describe the litigation merely as a draw.
3. On an appeal from a costs order, the Court of Appeal does not substitute its own view merely because another judge might have reached a different result. Intervention requires an error of principle or an exercise of discretion that is plainly wrong having regard to the material before the judge. The trial judge is well placed to assess the history of the litigation, the timing of concessions, the time spent on individual issues and the overall degree of success.
4. The claimants had needed to litigate to establish substantial rights, including the rights of way and removal of the gas meter. Although the parking issue was valuable in terms of the property and the defendants succeeded on it, its financial importance did not necessarily determine the proper allocation of costs. The judge was entitled to regard the construction of clause 7 and the claimants’ substantial success as important. No arguable error or plainly wrong exercise of discretion was shown.

Order: application refused.

• Court of Appeal (Civil Division): in [2002] EWCA Civ 638, refused the defendants’ application for permission to appeal.
• Central London County Court: His Honour Judge Rich QC ordered the defendants to pay 75 per cent of the claimants’ costs following the trial.