Sonmez v Kebabery Wholesale Ltd

Where primary liability is admitted but contributory negligence is contested, the relevant event for costs is ordinarily the claimant’s overall success on apportionment, not the defendant’s success on contributory negligence viewed as a separate issue.

Failure to negotiate or make a realistic offer may amount to unreasonable conduct under CPR 44.3, but the question is fact-sensitive. A claimant is not to be penalised where it was reasonable, in the particular circumstances, to maintain a genuinely held case of complete responsibility.

The claimant suffered severe injuries while cleaning machinery operated by his employer. Primary liability was admitted, but the defendant alleged contributory negligence. The High Court found the claimant 20% contributorily negligent, entered judgment for 80% of his damages, and ordered him to pay the defendant’s costs of the preliminary trial on contributory negligence.

The claimant appealed. He argued that the issue was the overall apportionment of liability and that his refusal to compromise should not displace the ordinary costs rule. The central issues were whether the defendant had won the costs event and whether the claimant’s conduct justified reducing his costs.

1. Appeal allowed. The costs order requiring the claimant to pay the defendant’s costs of the contributory-negligence trial was reversed. The defendant was ordered to pay the claimant’s costs, to be assessed if not agreed.
2. Following Onay v Brown [2009] EWCA Civ 775, the event in a contested liability case of this kind is the apportionment of liability in the round. Contributory negligence is ordinarily intertwined with the assessment of how the accident happened, causation and relative blameworthiness. Establishing some contributory negligence does not ordinarily make the defendant the successful party on costs.
3. The claimant had obtained judgment for 80% of his damages and was therefore the successful party for the purposes of the general rule that costs follow the event. The defendant’s Part 36 offers were relevant but did not alter that conclusion.
4. Under CPR 44.3(4) and (5), the court must consider all the circumstances, including conduct before and during proceedings, partial success, the reasonableness and manner of pursuing issues, and admissible offers. A failure to negotiate may justify a costs penalty in an appropriate case, but the assessment is fact-sensitive.
5. The rules provide defendants with protection through payments or offers, including Part 36 offers. The claimant’s insistence on complete liability was not unreasonable here. His case was genuinely held and had been accepted to a considerable extent. No reduction for conduct was justified.

• Court of Appeal (Civil Division): Appeal allowed; the costs order was reversed and the defendant was ordered to pay the claimant’s costs.
• High Court of Justice, Queen’s Bench Division: On 31 October 2008, HHJ Hawksworth QC entered judgment for the claimant for 80% of damages but ordered the claimant to pay the defendant’s costs of the preliminary trial on contributory negligence.