Jones & Ors v Secretary of State for Energy And Climate Change & Ors

In complex group litigation, success for costs purposes is assessed by reference to the litigation as a whole. A party’s failure on individual issues does not automatically justify a costs reduction. The court must consider the overall result and all relevant circumstances, including the significance and cost of issues lost. A broad percentage reduction may be preferable to issue-by-issue assessment where detailed apportionment would be impracticable. Even where an unsuccessful issue was reasonably pursued, costs may be reduced if justice requires it and the issue was discrete and materially affected the litigation. In group litigation, costs relating to test or lead claims may form part of the common costs under CPR 48.6A(2).

The judgment concerned costs following the trial of eight lead claims in the Phurnacite Workers Group Litigation. The group comprised 183 claims for respiratory disease and cancers allegedly caused by workplace exposure to dust and fumes. The claimants succeeded on breach of duty, exposure, and some causation issues, but failed on bladder cancer and basal cell carcinoma.

The court had to determine which party was successful overall, whether the claimants’ costs should be reduced for issues on which they failed, the appropriate method and percentage of any reduction, and related questions concerning interest on disbursements, privilege and disclosure.

1. Overall success. The claimants were the successful party when the litigation was viewed as a whole. They established breach of duty and harmful exposure, and obtained findings enabling most registered claims to proceed. They were therefore prima facie entitled to their costs under CPR 44.3.
2. Method of assessment. An issue-by-issue costs order under CPR 44.3(6)(f) would be excessively complex and would increase the cost of detailed assessment. A percentage approach was appropriate. The court had to consider the work done throughout the litigation, not merely the time spent at trial.
3. Issues not warranting reduction. No reduction was justified for breach of duty, exposure levels, non-malignant respiratory disease, the legal causation dispute concerning lung cancer, or limitation. The claimants had achieved substantial success on those matters. The fact that evidence or legal arguments had not all been accepted did not convert the claimants into unsuccessful parties on those issues.
4. Discrete unsuccessful issues. The defendants succeeded on causation of bladder cancer and basal cell carcinoma. Although the claimants had acted reasonably in investigating and pursuing those issues, the issues required separate evidence, occupied significant resources and were material to the litigation. The interests of justice therefore required a reduction reflecting the costs incurred by both parties on them.
5. Assessment and orders. A broad-brush assessment produced a 20% reduction. The defendants were ordered to pay 80% of the claimants’ costs of the action as assessed. The application for interest on disbursements was adjourned. The claimants were ordered to disclose limited provisions of the relevant conditional fee agreements, executed disbursement funding agreements, and particulars of each disbursement for which interest was claimed. Privileged correspondence was not disclosable.