"Krysia" Maritime Inc v Intership Ltd

Under CPR Part 44.3, the party that has really won at trial ordinarily receives its costs. A finding that a successful claimant was partly at fault, and therefore recovered only part of its damages under the Merchant Shipping Act 1995, does not by itself justify reducing its costs. Historical Admiralty practice does not establish a contrary rule where there is no counterclaim. Any different or issue-based costs order requires proper justification under the rule. Relevant litigation conduct may also be considered.

The claimants owned the support vessel “KRYSIA”; the defendants owned the dumb barge “EUROPA”. The court had found the defendants 70% responsible and the claimants 30% responsible for a fouling incident under section 187(1) and (2) of the Merchant Shipping Act 1995. Damages remained for a later hearing.

The issue was whether the claimants should recover only a proportion of their costs because of their contributory fault and alleged longstanding Admiralty practice. The parties later settled the amount of costs but agreed that the court should determine the point of principle.

1. The claimants were the party that had really won at trial. The general rule in CPR 44.3(2)(a), that the unsuccessful party pays the successful party’s costs, therefore applied unless there was good reason to depart from it.
2. The pre-CPR Admiralty authorities did not establish a rule that a claimant found partly at fault under section 187(1) and (2) of the Merchant Shipping Act 1995 must recover costs only in proportion to the defendant’s liability where there was no counterclaim.
3. CPR Part 44.3 gives the court a broad discretion. It is not confined to the general rule or a conventional issue-based order. Any alternative approach must be justified by the rule and relevant circumstances, while excluding irrelevant matters.
4. The claimants’ 30% responsibility, and their recovery of only 70% of the claim, were insufficient reasons to reduce their costs. There was no legitimate basis for an issue-based order.
5. The defendants’ conduct reinforced the costs order in the claimants’ favour. Relevant matters included failure to make an offer, a late change of case concerning the rope attached to the fender, and unsatisfactory evidence from their principal witnesses.
6. A costs order was made in favour of the claimants. No summary assessment was required because the parties had settled the costs issue.