Richards & Anor, R (on the application of) v Pembrokeshire County Council

A successful party will ordinarily recover its costs in the court below and on appeal where it had a justified complaint requiring litigation. Changes in its case and unsuccessful arguments do not automatically justify depriving it of costs. A partial reduction may be appropriate where those matters caused significant costs to be wasted or materially increased the burden of the litigation. The deduction should be proportionate to the costs consequences of that conduct.

The appellants challenged a costs decision arising from proceedings against Pembrokeshire County Council in the Divisional Court. The Court of Appeal had initially indicated that the appellants should receive all their costs, except that there should be no order for costs relating to the hearing on 9 March 2004.

After receiving further written submissions from the respondent, the court reconsidered the allocation of the remaining costs. The central issue was whether changes in the appellants’ case and unsuccessful arguments justified depriving them of all, or part, of their costs.

1. Costs outcome. In a judgment delivered by Lord Justice Neuberger, the court maintained the order that there should be no order for costs relating to the hearing on 9 March 2004. For all other costs of the appeal and the proceedings below, the respondent was ordered to pay two-thirds of the appellants’ costs.
2. The appellants had a justified complaint about the respondent’s order. They were required to come to court and pursue an appeal in order to vindicate that complaint. In those circumstances, and absent a good reason to the contrary, they should receive their costs both below and on appeal.
3. A party who succeeds on the ultimate issue should not ordinarily lose all its costs merely because its case developed during the litigation or because some arguments required evidence, occupied court time, or failed. That conclusion is particularly applicable where there is ultimately only one issue.
4. Those matters may nevertheless justify a partial costs reduction if they have resulted in a significant, though not necessarily overwhelming, amount of costs being wasted or incurred unnecessarily. The assessment must allow for ordinary refinements and variations in litigation of this nature.
5. The appellants’ case had changed to some extent and certain arguments had been unsuccessful, but the respondent overstated the significance of those changes. A deduction of one-third was therefore appropriate. The formal order awarded the appellants two-thirds of their costs here and below.

• Court of Appeal (Civil Division): On [2005] EWCA Civ 123, the court determined the costs of the appeal and the proceedings below, awarding the appellants two-thirds of those costs and making no order for the hearing on 9 March 2004.
• High Court of Justice, Queen’s Bench Division, Divisional Court: The appeal arose from proceedings before Mr Justice Moses under claim number CO/1760/2003. The decision’s citation is not stated in the judgment.