AVB v TDD

Costs are governed by the court’s discretion under CPR r 44.2. The general rule that the unsuccessful party pays the successful party is only a starting point. The court must consider all the circumstances, including relative success, party conduct before and during proceedings, the reasonableness of raising or pursuing issues, and admissible settlement offers. Conduct is unqualified and may include relevant conduct before the action began. A party’s success may be limited where the relief obtained protects third-party rights or is substantially less beneficial than the relief sought. A settlement offer may justify a different costs order where the claimant achieved nothing of value beyond what could have been obtained by accepting it.

The judgment concerned costs following a trial in which the claimant obtained a permanent injunction, but failed in claims for breach of contract and harassment. The defendant succeeded on her counterclaim concerning harassment liability, although no injunction was granted against the claimant because the court assessed the future risk of disclosure as insufficient. The court also considered the parties’ conduct, including pre-action conduct, dishonesty findings, and a defendant’s earlier unreasonable conduct for which indemnity costs had been ordered. It further considered a without-prejudice save as to costs offer made on 26 March 2014.

1. The court exercised its discretion under CPR r 44.2. The unsuccessful-party rule was subject to the court’s consideration of all the circumstances, including conduct, partial success and admissible settlement offers.
2. The claimant had achieved an important but relatively minor part of his case. His principal success concerned protection of third-party rights rather than his own rights. Overall, the defendant had emerged from the trial better than the claimant.
3. Conduct under CPR r 44.2(4)(a) is unqualified. Relevant conduct may therefore occur before proceedings are commenced. The court expressly agreed with