The National Guild of Removers and Storers Ltd v Derek Milner (t/a Intransit Removals and Storage Ltd)

In an issue-based costs assessment, the overall winner is ordinarily entitled to its general costs, subject to adjustment for issues on which it lost. Any discount should generally be assessed globally and applied across the relevant stages, rather than calculated separately for individual stages. The assessment requires the court to identify the overall winner, consider the issues lost or exceptionally pursued, assess an overall discount, and then apply that discount when assessing costs by stage and against the applicable caps. A party should not be deprived of costs for unsuccessful issues unless the circumstances justify that result.

The judgment concerned the form of order following an earlier decision in trade mark, copyright and passing-off proceedings. The defendant had succeeded overall, including on substantial parts of a counterclaim, but had failed on certain validity and revocation issues. The parties disputed whether the defendant should receive costs, the appropriate discount, whether any discount should be applied stage by stage, and permission to appeal against findings concerning consent to use of a logo.

1. The defendant was the overall winner and was entitled to an award of costs. The claimant’s infringement, copyright and passing-off claims had failed, while the counterclaim had succeeded in full or substantial part. The issues on which the defendant lost did not justify requiring him to pay the claimant’s costs of those issues.

2. The court adopted the issue-based approach described in BOS GmbH & Co KG v Cobra UK Automotive Products Division Limited [2012] EWPCC 44; [2013] FSR 39. A discount is an overall, rough-and-ready assessment. It should not be confined to selected stages of the costs assessment.

3. The relevant sequence was to identify the overall winner; identify sufficiently circumscribed issues for which costs should be withheld or exceptionally awarded against the winner; assess an overall discount; assess costs for each stage without applying the caps; apply the overall discount; compare each result with the applicable stage cap; and total the stage awards subject to the overall cap.

4. Applying that approach, the appropriate discount was 40% on the defendant’s costs. The Part 20 proceedings were not taken into account.

5. Permission to appeal was refused. The proposed appeal sought to revisit findings of fact and disclosed no clearly identified point of law with a real prospect of success.

The judgment followed the court’s earlier judgment dated 18 March 2014. No separate appellate decision is stated.