Asghar & Anor v Ahmad & Ors

The court has a wide discretion when making costs orders after trial. Indemnity costs may be ordered where the facts or conduct take the case outside the norm; deliberate misconduct is unnecessary, since highly unreasonable conduct may suffice. A contribution order benefiting a successful defendant is appropriate only where the claimant reasonably faced uncertainty about which defendant was responsible, or where the claims were advanced in the alternative or the defendants blamed one another. A defendant liable for only part of a claim should pay only the proportion of costs properly attributable to that part, excluding additional costs caused by pursuing other defendants.

The judgment determined costs following an earlier judgment on liability and quantum dated 23 April 2015. The claimants had succeeded against the fourth defendant in relation to publication of a dossier and website, but not in relation to an update. The first, second and third defendants were successful. The court considered whether the unsuccessful claim against those defendants justified indemnity costs, whether the fourth defendant should contribute to their costs, the proportion of the claimants’ costs payable by the fourth defendant, and an interim payment on account.

1. The court had a broad discretion under CPR 44.2 as to whether costs were payable, their amount and timing. The general rule that the unsuccessful party pays the successful party’s costs could be displaced having regard to all the circumstances, including party conduct, partial success and settlement offers.
2. Under [2002] EWCA Civ 879, indemnity costs could be justified where the facts or conduct took the case outside the norm. Deliberate misconduct was not required; unreasonable conduct to a high degree could suffice. The claim against the first, second and third defendants had been pursued without a proper evidential foundation, despite reasonable opportunities to withdraw it. Their costs were therefore payable by the claimants on the indemnity basis.
3. The court declined to make a Bullock or Sanderson order requiring the fourth defendant to contribute to those costs. As explained in [2005] EWCA Civ 129, such an order may assist where a claimant is genuinely uncertain which of several defendants caused the wrong and risks losing the damages recovered from the unsuccessful defendant. That situation did not arise here: the claim was not pleaded in the alternative, the claimants knew their evidence against the fourth defendant was strong and their evidence against the other defendants was weak, and the defendants were not blaming one another.
4. The fourth defendant was liable for 56% of the claimants’ reasonable costs on the standard basis. Thirty per cent was attributed to the update and 70% to the dossier and website. A further 20% of the total represented additional costs caused by pursuing the other defendants and was excluded from the fourth defendant’s liability.
5. Under CPR 44.2(8), the fourth defendant was ordered to pay £25,000 on account of costs. The prior costs order was otherwise substituted by orders requiring the claimants to pay the first, second and third defendants’ reasonable costs on the indemnity basis, and the fourth defendant to pay 56% of the claimants’ reasonable costs on the standard basis.

The judgment followed an earlier High Court judgment on liability and quantum dated 23 April 2015. No appeal is stated.