Amin v Amin

Costs are determined by the overall result, the issues on which each party succeeded or failed, and the conduct that caused costs to be incurred. A party who obtains alternative relief may properly be treated as successful on that issue, even where the primary relief sought failed. That does not require a costs award in its favour where it also lost other issues or ought to have raised the successful alternative earlier. The court may therefore make no order as to costs where that outcome fairly reflects the mixed result and the parties’ conduct.

This was a supplemental judgment on the costs of an application heard on 28 May 2010. The application concerned a point under section 42 of the Partnership Act 1890, the costs of minor partners, and an application by Vatsal and Anju for an interim payment or, alternatively, a stay of payment on account of costs pending an account. They failed on the interim-payment application but obtained the alternative stay. The central issue was the fair allocation of costs in light of that mixed outcome and the timing of the stay application.

1. Overall approach. The court assessed costs by reference to the distinct issues, the time and preparation each issue required, the success achieved, and the parties’ conduct.
2. Section 42 and minor-partner costs. Vatsal and Anju were unsuccessful on the section 42 point and on the ancillary issue concerning the costs of partners in the minor partnerships. Those issues occupied comparatively little hearing time, but their failure on them had to be reflected in the costs decision.
3. Interim payment and stay. Vatsal and Anju failed to obtain an interim payment but succeeded in obtaining a stay. They were properly regarded as the successful parties on that aspect because the alternative relief achieved a practical result. The stay was not an undesirable fallback and was a genuine alternative to the interim payment.
4. Timing and conduct. The stay application could and should have been made at the earlier hearing when payment on account was sought. The failure to raise it then, and the need for a separate application and hearing, justified withholding recovery of Vatsal and Anju’s costs despite their success on the stay.
5. Order. The fair result was no order as to costs between Vatsal and Anju and Udi and Bhavini in respect of all aspects of the 28 May 2010 hearing. Counsel were directed to finalise and lodge the minute of order.

First-instance supplemental judgment on the costs of an application heard on 28 May 2010. The judgment refers to an earlier judgment handed down on 25 March 2011, but gives no citation for it.