Underhill v Corser & Anor

In determining costs after preliminary issues, the court applied the usual rule that a successful party should receive its costs, subject to a fair allocation reflecting the issues actually won and the costs attributable to them.

Where a defendant succeeded on one issue but added nothing to the costs of issues on which the claimant succeeded, the costs order should reflect that limited contribution. Points conceded before trial do not ordinarily justify a separate costs allowance where the costs would not have been incurred but for a failure to comply with procedural obligations, or are immaterial.

The judgment concerned the costs consequences of preliminary issues in defamation proceedings between Stephen Underhill and Richard Corser and Timothy Watson. The court had previously determined questions concerning publication to non-members, qualified privilege, publication by Mr Corser and abuse of process in [2010] EWHC 1195 (QB).

Mr Corser succeeded on the issue of responsibility for publication. The claimant succeeded against both defendants on publication to non-members and qualified privilege, and on the abuse of process issue. The court was required to determine responsibility for the costs of the action and of the preliminary issues.

1. The court applied the applicable costs principles in CPR 44.3. The usual order for a successful party was appropriate in favour of Mr Corser on the issue of responsibility for publication.

2. Mr Corser’s participation in the issues concerning publication to non-members, qualified privilege and abuse of process had added nothing to the costs. His costs of the action therefore related only to the issue on which he succeeded.

3. As against Mr Watson, the claimant had succeeded on the two preliminary issues decided against the defendants. Mr Watson was therefore in principle liable for the claimant’s costs of those issues. No separate allowance was made for points conceded before the hearing. The costs of the overrun-copy issue would not have been incurred if the defendants had complied with their obligations under the Pre-Action Protocol and the CPR, and the remaining costs were insufficiently material to warrant separate treatment.

4. The court assessed the costs attributable to Mr Corser and the issue on which he succeeded at approximately 25% of the whole. Mr Watson was ordered to pay 75% of the claimant’s costs of the preliminary issue, and the claimant was ordered to pay Mr Corser 25% of the costs incurred by the defendants in the action.

5. The parties were invited to agree the precise form of the costs order. Further submissions, including written submissions, would be heard if agreement could not be reached. Any order in Mr Corser’s favour was not to prevent the claimant continuing the action against Mr Watson, and the parties requested a stay pending any application for permission to appeal.

Not stated in the judgment. The decision was a first-instance costs determination following the court’s earlier judgment on preliminary issues.