Parkes v Martin

Contributory negligence does not, by itself, create a conventional rule that a successful claimant’s costs must be reduced in the same proportion as the claimant’s liability. Where an agreed determination of liability resolves both a claim and a related cross-claim, the absence of a formal counterclaim does not prevent that cross-claim being a relevant circumstance justifying costs apportionment under the Civil Procedure Rules.

On an appeal, the court retains a discretion to admit fresh evidence. The principles in Ladd v Marshall remain relevant, but admission is not automatically determined by whether all three conditions are satisfied.

The claimant suffered serious injury when his car lost control and was struck by the defendant’s lorry. The Worcester County Court found the claimant 65% responsible and the defendant 35% responsible, but awarded the claimant only 35% of his liability costs. The judge’s order reflected an agreed arrangement under which the liability decision would also determine the defendant’s related claim, although no formal counterclaim had been issued.

The claimant appealed, arguing that he was the successful party and that contributory negligence alone did not justify reducing his costs. The central issues were whether the judge had properly exercised the costs discretion and, alternatively, whether the Court of Appeal could admit evidence of the parties’ agreement and exercise the discretion afresh.

1. Appeal dismissed. The Court of Appeal held that the costs order was within the judge’s discretion under Civil Procedure Rules Part 44.3.
2. The judge was entitled to treat the liability determination as relevant to both the claimant’s claim and the defendant’s agreed cross-claim. The absence of a formal counterclaim was not decisive. The defendant’s reference to a claim that stood by the wayside sufficiently raised the point, and the claimant’s lawyers knew of the agreement but did not correct or clarify the position. In those circumstances, awarding the claimant 35% of his liability costs was properly within the discretion. This approach reflected the principle in Medway Oil and Storage Company Ltd v Continental Contractors Ltd & Ors [1929] AC 88, that apportionment may be justified where the same issue arises on claim and counterclaim.
3. On the alternative hypothesis that the judge had been unaware of the cross-claim, reducing costs merely in proportion to contributory negligence would have been a self-misdirection. A successful claimant’s costs are not automatically reduced by the claimant’s percentage of blame. Other relevant considerations would be required. The decision in Owners, Demise Charterers and Time Charterers of Ship "Western Neptune" et al v Owners and Demise Charterers of the Ship "Philadelphia Express" [2009] EWHC 1522 (Admlty) did not establish a conventional rule. Its costs order was also influenced by unsatisfactory settlement conduct and late disclosure.
4. Under Civil Procedure Rules Part 52.11(2), the appellate court retains a discretion to admit fresh evidence. The principles in Ladd v Marshall [1954] 1 WLR 1489 remain relevant, as recognised in Hertfordshire Investments Ltd v Bubb & Anr [2000] 1 WLR 2318, but the discretion is not automatically determined by whether all three conditions are satisfied. The undisputed agreement could have been admitted despite the reasonable-diligence issue. Had it been necessary, the Court of Appeal would have exercised the discretion afresh and made the same 35% costs order.

Lady Justice Smith agreed with Lord Justice Rimer. The formal order was: appeal dismissed.

1. Court of Appeal (Civil Division) [2009] EWCA Civ 883: dismissed the claimant’s appeal against the costs order.
2. Worcester County Court: found liability apportioned 65% to the claimant and 35% to the defendant, and awarded the claimant 35% of his liability costs.