Sukul-Lennard v Croydon Primary Care Trust

Where an appeal involves a discrete issue on which one party succeeds, the ordinary approach is to award that party its costs unless very special circumstances justify a different order. The fact that the ultimate outcome of the wider litigation remains uncertain does not, by itself, prevent a costs order. The court may postpone enforcement of the order until the litigation has concluded.

This was an appeal from the Employment Appeal Tribunal, presided over by His Honour Judge McMullen QC. The Court of Appeal was asked to determine the costs of a discrete issue concerning the manner in which the matter should be dealt with. The respondent had proposed that course in correspondence, but the appellant resisted it and lost that issue. The final outcome of the underlying litigation remained unknown.

The Court of Appeal ordered the appellant to pay the respondent’s costs thrown away by her failure to accept the course proposed in the respondent’s correspondence.

1. The issue was discrete, and the appellant had lost it.
2. The court stated that its almost invariable practice is to award costs to the successful party on a discrete issue unless there are very special circumstances.
3. No such circumstances had been suggested. The uncertainty surrounding the ultimate outcome of the litigation did not justify withholding the costs order.
4. Enforcement of the order was postponed until the conclusion of the underlying litigation.

1. Court of Appeal (Civil Division): On 22 July 2003, the court determined the costs of a discrete issue and ordered the appellant to pay the respondent’s costs, with enforcement deferred until the litigation concluded: [2003] EWCA Civ 1193 .
2. Employment Appeal Tribunal: The appeal originated from proceedings before the tribunal presided over by His Honour Judge McMullen QC; no citation or substantive disposition is stated in the judgment.