Cleveland Bridge UK Ltd & Anor v Multiplex Constructions (UK) Ltd

Costs following cross-appeals should be assessed by considering success in the round. Relevant matters include the number of issues decided, the time, effort and expense devoted to them, and the relative financial importance of the parties’ successes. Financial success on one issue does not automatically outweigh success on several issues.

A costs appeal is confined by the notice of appeal. Where the notice permits review only consequentially upon success in the substantive appeal, it does not open a general reconsideration of unaffected costs decisions below. A consequential adjustment remains discretionary and may reflect continuing criticism of a party’s conduct, including failure to engage with a constructive settlement proposal.

The High Court, Queen’s Bench Division, Technology and Construction Court, determined the parties’ quantum claims on 30 September 2008. It found Cleveland Bridge liable to pay Multiplex £6,154,246 including interest and ordered Cleveland Bridge to pay 20 per cent of Multiplex’s quantum costs.

Both parties appealed aspects of the quantum decision. On 19 February 2010, Cleveland Bridge succeeded on the preliminaries issue, while Multiplex succeeded on both of its appeal grounds. The resulting recovery was reduced to approximately £3.17 million including interest. The present hearing concerned the costs of those appeals and whether the High Court’s costs order should be adjusted.

1. Scope of the costs appeal. The court unanimously held that the notice of appeal identified the High Court costs order only insofar as the substantive quantum appeal succeeded. It therefore permitted consideration of the costs of the appeal and any consequential adjustment to the costs order below. It did not permit a general reopening of costs decisions unaffected by the quantum appeals.
2. Costs of the appeal. The court assessed success in the round. It considered both the number of issues on which each party succeeded and the relative time, effort and expense likely to have been devoted to those issues. It also gave weight to Cleveland Bridge’s greater financial success on its single successful ground. Multiplex nevertheless succeeded on five of the six appeal issues and was regarded as the more successful party overall. Multiplex was accordingly awarded 25 per cent of its costs of the appeal.
3. Costs below. The reduction in Multiplex’s financial recovery did not require alteration of the High Court’s order. Multiplex remained the overall successful party. The High Court’s criticisms of Cleveland Bridge’s conduct remained applicable, particularly its failure to make an offer to settle the proceedings and its failure to engage with Multiplex’s constructive March 2008 proposal. That proposal closely approximated the eventual result on most issues and offered to narrow the dispute, while leaving a short contractual issue to be contested if necessary.
4. Final order. There was no alteration to the High Court’s costs order. Cleveland Bridge was ordered to pay £40,000 on account within 14 days, with detailed assessment otherwise.

• Court of Appeal (Civil Division): At the present costs hearing, Multiplex received 25 per cent of its appeal costs. The High Court costs order was left unchanged.
• Court of Appeal (Civil Division): On 19 February 2010, the substantive quantum appeals were determined. Cleveland Bridge succeeded on the preliminaries issue; Multiplex succeeded on both of its appeal grounds.
• High Court, Queen’s Bench Division, Technology and Construction Court: On 30 September 2008, Mr Justice Jackson determined the quantum claims, awarded Multiplex approximately £6.15 million including interest, and ordered Cleveland Bridge to pay 20 per cent of Multiplex’s quantum costs.