Hone & Ors v Abbey Forwarding & Anor

Costs in complex litigation may be determined by a broad-brush assessment of the parties’ conduct and the issues on which they succeeded or failed. The court may favour an issues-based order where one party advanced an inflated claim and the other refused to make a realistic offer despite the possibility of recovery. The costs discretion must take account of all relevant matters, including those identified in CPR 44.2. An appeal may attract no order for costs where the appellant obtains some successes but loses the significant legal issue occupying most of the argument.

The appellants appealed from orders made in the Chancery Division by His Honour Judge Pelling, sitting as a Deputy High Court Judge, in proceedings concerning damages under a cross-undertaking. The Court of Appeal’s principal judgment had been delivered on 23 May 2014. These further written submissions concerned the consequential orders: the final judgment sum, interest, costs in the High Court and on appeal, and an interim payment on account of costs.

The central issue was how those matters should be reflected in the final order after the appellants had succeeded on some issues but lost the principal legal issue concerning recoverable damages.

1. Disposition. The appeal was allowed in the form of consequential orders. The cross-appeal was dismissed. The appellants were awarded £57,763.31 in total, comprising £45,000 general damages, £3,463.31 payable to Patrick Owen, and £9,300 for lost future marble transactions. Interest was to be calculated in the proposed manner at 3%, with the parties to agree the figure.
2. High Court costs. The court adopted a broad-brush approach, taking account of the parties’ conduct, their respective successes and failures, the inflated claim advanced by the appellants and the respondents’ failure to make a realistic offer. It had regard to the trend towards issues-based costs orders and to all relevant matters under CPR 44.2. The respondents were ordered to pay 25% of the appellants’ High Court costs, assessed on the standard basis.
3. Appeal costs. Although the appellants obtained an increased damages award, succeeded in principle on the costs appeal and won the cross-appeal, they lost on the significant legal issue which occupied most of the argument. The appropriate order was therefore no order for the costs of the appeal and cross-appeal.
4. Interim costs. The respondents were ordered to pay £100,000 on account of costs within 21 days. The revised order was to state that the appeal was allowed and the cross-appeal dismissed, without using the language of declarations.

• Court of Appeal (Civil Division): Following the court’s principal judgments of 23 May 2014, the court determined consequential matters on the papers. The appeal was allowed in the resulting order and the cross-appeal dismissed.
• Chancery Division: His Honour Judge Pelling, sitting as a Deputy High Court Judge, had made the orders from which the appeal arose. No citation for that decision is stated in the judgment.