Bold v Urbisity Ltd

When an appeal is compromised after partial success, costs should reflect the extent of the success actually achieved against the relief sought. The court must consider whether a party succeeded on only part of its case under rule 44.3(4)(b) of the Civil Procedure Rules 1998. A modest reduction in liability, substantially below the outcome sought, may justify requiring the successful appellant to pay a proportion of the respondent’s appeal costs.

The claimant had recovered damages for a catastrophic employment injury. Following detailed assessment, the defendant was ordered to pay the claimant’s assessment costs. The defendant appealed, seeking a substantial reduction in that liability. The appeal was compromised on terms that the defendant would pay 71% of the claimant’s assessment costs.

The parties could not agree the costs of the appeal. The issue was whether the defendant’s partial success justified an order requiring the claimant to pay the defendant’s appeal costs, or whether the defendant should pay some of the claimant’s appeal costs.

1. The appeal had been compromised so that the defendant would pay 71% of the claimant’s costs of the detailed assessment. The remaining issue was the appropriate order for the costs of the appeal.
2. Under rule 44.3(4)(b) of the Civil Procedure Rules 1998, the court had to consider whether a party had succeeded on only part of its case. The relevant assessment was not confined to the fact that the defendant had obtained some reduction in its liability. It was necessary to compare that result with the relief the defendant had sought.
3. The defendant had sought to establish that the vast majority of the claimant’s assessment costs should not be paid by it. The settlement achieved only a modest reduction. The defendant therefore obtained a limited measure of success, while remaining liable for its own assessment costs and 71% of the claimant’s assessment costs.
4. That limited success justified an order that the defendant pay 60% of the claimant’s costs of the appeal, in addition to its own costs. The appeal costs were to be subject to detailed assessment if not agreed, to take place with the detailed assessment of the assessment costs.

• High Court (Queen’s Bench Division): The defendant appealed against the district judge’s order requiring it to pay the claimant’s costs of the detailed assessment. The appeal was compromised on terms that the defendant would pay 71% of those costs. The High Court determined the consequential appeal-costs issue and ordered the defendant to pay 60% of the claimant’s appeal costs.