Wilson v Clyne Farm Centre

Although costs generally follow the event, a successful claimant may receive a reduced costs award where a distinct issue has failed and its pursuit caused substantial additional expense. In personal injury litigation, failure on one pleaded allegation does not ordinarily justify depriving the claimant of costs, but the court must consider all the circumstances, including the separability and cost of the failed issue and the parties’ conduct. An issue-based costs order requiring detailed separation of costs may create disproportionate complexity. A percentage reduction may therefore be the fairer method. The court also may take unreasonable conduct in relation to alternative dispute resolution and non-compliance with a court order into account.

The claimant succeeded in his personal injury claim arising from an accident on the defendant’s assault course. The court found breaches of duty concerning instruction and impact attenuation. The claimant failed, however, to prove that the inadequate impact attenuation caused or increased his injury.

The claimant had made a Part 36 offer which he bettered, so the ordinary Part 36 costs consequences applied. The issue was whether the claimant’s costs should nevertheless be reduced because of his failure on causation in relation to impact attenuation, and, if so, whether the reduction should be assessed by separating costs attributable to that issue or by applying a percentage reduction.

1. The claimant bettered his Part 36 offer. Accordingly, under CPR 36.14(1)(b), he was entitled to costs up to the date of the offer on the standard basis and thereafter on the indemnity basis.

2. Under CPR 44.3(2), costs ordinarily follow the event, but the court may make a different order. Under CPR 44.3(4), it must consider all the circumstances, including the parties’ conduct and whether a party succeeded on only part of its case.

3. The impact-attenuation allegation was a discrete issue because it required expert involvement. It failed on causation because there was no medical or technical evidence establishing the necessary causal link. In those circumstances, it was appropriate to depart to some extent from the usual costs rule.

4. An issue-based order requiring the costs judge to identify and disallow every cost relating to the failed issue was unattractive because it would create complexity and additional expense. Consistently with the guidance in Fox v Foundation Piling Limited [2011] EWCA Civ 790, a percentage reduction was the preferable approach.

5. The defendant’s failure to engage reasonably with ADR, its failure to respond properly to correspondence and its failure to comply with the court’s order to file a witness statement were relevant, although only to a small extent.

6. The claimant was therefore awarded 95 per cent of his costs.