Feakins v Burstow & Anor

In a costs ruling following substantial but partial success, the unsuccessful party generally pays the successful party’s costs. A reduction is not required merely because the claimant failed on ancillary issues where the principal claim succeeded and the unsuccessful issues occupied little of the trial. An offer inclusive of damages, interest and costs may be considered under Rule 44.3(4)(c), even though it is not a Part 36 offer. Its costs significance depends on all the circumstances, including timing, clarity, genuineness, financial security and whether rejection was reasonable. The recoverable bill remains subject to detailed assessment for reasonable and proportionate costs.

The claimant obtained judgment for £270,000 inclusive of interest after establishing negligence against the first defendant. The underlying action concerned the loss of a chance to succeed in a claim relating to exempt sheep. The claimant also failed on several ancillary negligence claims and succeeded only in part on certain costs-related claims.

At the hearing on permission to appeal and costs, the claimant sought all his costs. The defendants argued for a substantial reduction, relying on partial success, settlement offers, the relationship between costs and damages, and the size of the costs bill.

1. Permission to appeal. Permission was granted on the valuation of the claimant’s chance in the exempt sheep claim and on contributory negligence. Permission was refused on the light lambs claim, the claim for 17 invoices already paid, and the defendants’ challenge to the application of the principle in Amory v Delamirie (1772) 1 Stra. 505. The principle applied to a solicitor’s negligence in allowing a cause of action or defence to be lost and was not confined to cases where the solicitor had represented the claim as having a good prospect of success.
2. Costs. The claimant was the successful party because he established negligence and recovered substantial damages on the central claim. The general rule in Rule 44.3(2)(a) therefore applied. No reduction was made for failure on ancillary claims because those claims were reasonable to raise, occupied little trial time and did not alter the central character of the litigation. Nor was the award reduced to reflect recovery of only 60 per cent of the chance-based claim.
3. An offer of £550,000 inclusive of damages, interest and costs could be considered under Rule 44.3(4)(c), notwithstanding that it was not a Part 36 offer. The conditions identified in Trustees of Stokes Pension Fund v Western Power Distribution (South West) Plc [2005] EWCA Civ 854 were relevant. The late timing, uncertainty about assessed costs and potential difficulty created by the inclusive form made rejection reasonable.
4. The large costs bill did not itself justify depriving the claimant of costs. Proportionality and reasonableness were matters for the costs judge under Rules 44.4 and 44.5. The defendants were ordered to pay the claimant’s costs of the action, to be assessed if not agreed.

The judgment records rulings on permission to appeal from the court’s earlier judgment delivered on 8 September 2005.

• High Court (Queen’s Bench Division): permission granted on valuation of the exempt sheep claim and contributory negligence; permission refused on the remaining specified grounds. The time for filing the notice of appeal was extended.