AB v Ministry of Justice

Costs are discretionary. The general rule that the unsuccessful party pays the successful party may be displaced where the claimant has abandoned or discontinued substantial parts of the litigation and has achieved only partial success. Where detailed costs evidence is unavailable and a further hearing would be disproportionate, the court may make a reasonable percentage allocation. The court should consider the parties’ conduct, the issues abandoned, the issues determined at trial, and any admissible settlement offers. An indemnity costs order requires unreasonable conduct or other circumstances satisfying the relevant criteria; criticism of litigation conduct alone is insufficient.

The judgment determined costs following earlier proceedings concerning alleged failures to provide personal data under the Data Protection Act 1998. The claimant had brought two claims seeking, among other remedies, compensation for damage and distress and destruction of data. Before trial, he narrowed the litigation so that only issues concerning material relating to his wife’s death remained. The claimant then obtained nominal damages and £2,250 for distress.

The parties could not agree costs. The court had to determine the effect of the abandoned issues, the parties’ relative success, whether costs should be awarded on an indemnity basis, and the appropriate allocation where no detailed evidence of costs was available.

1. The claimant’s conduct at the pre-trial review had the effect of discontinuing or abandoning the other claims. The issue of costs had been left open, but the claimant, a solicitor represented by experienced counsel, would have appreciated the potential effect of Civil Procedure Rules 1998, rule 38.6.

2. Under CPR 44.2, the court retained a broad discretion as to whether costs were payable, their amount and timing. The general rule that the unsuccessful party pays the successful party could be displaced by the circumstances, including conduct, partial success, the reasonableness of pursuing issues and admissible settlement offers. The court could make proportionate or issue-based orders under CPR 44.2(6) and CPR 44.2(7).

3. In the absence of evidence identifying the amount or timing of costs, and because neither party sought a further hearing, a percentage assessment was appropriate. The costs referable to the issues abandoned before the pre-trial review were assessed at approximately 80 per cent, leaving approximately 20 per cent referable to the issues tried.

4. The claimant substantially succeeded on the issues tried. Although he established entitlement to only one item of withheld material, that success materially affected the damages award. The remaining documents did not justify a reduction in his costs of the post-review period or trial.

5. The criteria for indemnity costs against the defendant were not established. The defendant’s position concerning retention of the data was reasonable while damages for delay remained in issue, and its conduct of the litigation and settlement discussions was not unreasonable. Although aspects of the claimant’s conduct could be criticised, they did not justify indemnity costs against him.

6. The claimant was ordered to pay 80 per cent of the defendant’s costs, and the defendant 20 per cent of the claimant’s costs, from commencement to the pre-trial review. The defendant was ordered to pay 100 per cent of the claimant’s costs from 21 January 2014 through trial. All costs were on the standard basis.