Parkin & Ors v Alba Proteins Ltd & Ors

Costs are governed by a broad discretion requiring consideration of all the circumstances. Relevant matters include the parties’ conduct before and during proceedings, the overall outcome, whether it was reasonable to raise and pursue an unsuccessful issue, and the additional costs caused by that issue. A successful party need not recover all its costs where a distinct argument materially increases the costs of both sides. The court may instead award a substantial proportion of the successful party’s costs, assessed on the standard basis. Where defendants jointly conduct and resist applications, and their close collaboration is established, liability for the awarded costs may be joint and several.

The claimants pursued applications concerning limitation, deliberate concealment, estoppel and the addition of a defendant in proceedings alleging a continuing nuisance caused by odour from rendering operations. In an earlier judgment, the court rejected the estoppel argument but found for the claimants on limitation and the addition of a defendant.

This judgment determined the consequential costs issues, including the effect of the unsuccessful estoppel argument, the defendants’ conduct, the appropriate proportion of recoverable costs, responsibility among the defendants, and payment on account.

1. The claimants succeeded overall, but the unsuccessful estoppel issue added significantly to the costs incurred by both sides. It was reasonable for the claimants to raise and pursue that issue, but its late addition and late clarification increased the defendants’ preparatory burden.
2. Under Civil Procedure Rules 1998, rule 44.2, the court had discretion as to whether costs were payable and in what amount. Although the general rule favoured the successful party, the court had to consider all the circumstances, including conduct and the reasonableness of raising or pursuing a particular issue. The court also had to consider whether a proportionate costs order was practicable instead of an order confined to a distinct part of the proceedings.
3. Balancing the claimants’ overall success, the common factual foundation of the arguments, the defendants’ conduct, and the additional burden caused by the estoppel issue, the claimants were entitled to recover 90 per cent of their costs, excluding specified costs of the later application. Those costs were to be assessed on the standard basis.
4. All three defendants were jointly and severally liable. The applications had been issued against and resisted by all three, who shared legal representation and formed a closely collaborating group.
5. A conservative approach was appropriate to payment on account. The defendants were ordered to pay £23,000 on account. They were also ordered to pay the costs of the permitted amendment, on the standard basis if not agreed.

The judgment determined costs following the court’s earlier judgment dated 31 July 2013 on the claimants’ Part 23 applications. No appeal is stated.