Dickinson & Ors v Tesco Plc & Ors

In exercising its discretion over appellate costs, the court may assess substantive success and the relief obtained, while taking account of delay, conduct and unreasonable settlement positions. A percentage costs order may be appropriate where success is mixed but one party achieved the principal objective. Where a retrial is ordered because fresh evidence affects a defined issue, unaffected issues must remain closed. The court may correct an unclear order under the Civil Procedure Rules 1998 so that the intended scope of the retrial is clear.

Four appeals from county court decisions concerned claims involving recoverable car-hire rates. In the principal judgments handed down on 4 February 2013, the Court of Appeal allowed the appeals, admitted fresh evidence, granted permission to appeal out of time and ordered retrials. The retrial costs remained for determination. The present judgment concerned the dispute between AEL and AXA over appeal costs, AEL’s addition as a party for costs, and the proper scope of the retrials. It also addressed a discrepancy between the principal judgment and the formal order: whether issues other than the hire rate could be reopened.

This was the judgment of the court.

1. The court agreed under Pt 48.2 of the Civil Procedure Rules 1998 to add AEL as a party for the purposes of costs. AXA consented to that order.
2. AEL had been substantially successful. It obtained permission to appeal out of time, permission to adduce fresh evidence and retrials in all four cases. AXA succeeded only on whether it could contest the retrials and on the form of those retrials.
3. The court considered conduct and settlement history but did not attempt to measure the parties’ intransigence precisely. AEL had delayed, placed excessive emphasis on its alleged connection with Autofocus and made an initially unrealistic settlement demand. AXA could reasonably have conceded the extension of time and permission to appeal. Those matters justified a reduction, but not elimination, of AEL’s costs recovery.
4. Costs of the retrials were left to the judges conducting them. AEL was awarded 70% of its appeal costs, subject to detailed assessment on the standard basis if not agreed.
5. The discrepancy between the principal judgment and the order was corrected under Part 40.12(1) of the Civil Procedure Rules 1998. The retrials were confined to the quantum of the recoverable car-hire rate. Issues unaffected by the fresh evidence, including the need for a hire car and the length of the hire period, could not be reopened.

• Court of Appeal (Civil Division). The present judgment awarded AEL 70% of its appeal costs, left retrial costs to the retrial judges and amended the order to confine the retrials to the recoverable hire rate.
• Court of Appeal (Civil Division). The principal judgments, handed down on 4 February 2013 and cited as [2013] EWCA 36, allowed the four appeals, admitted fresh evidence, granted permission to appeal out of time and ordered retrials.
• County courts. The appeals arose from decisions of Reading County Court, Central London Civil Justice Centre and Uxbridge County Court.