Uwug Ltd & Anor v Ball

Costs remain in the court’s discretion, but that discretion must be exercised consistently with the CPR and the circumstances of the case. A withdrawn Part 36 offer may still be relevant to costs. The court may consider the offer under CPR 44.2(4)(c), even though the automatic Part 36 consequences do not apply. An unreasoned offer may count against the offeror where the receiving party is left unreasonably unable to assess it, although the effect depends on the information available. Litigants in person are generally subject to the same procedural consequences as represented parties. A refusal to mediate does not automatically justify an adverse costs order; its relevance depends on the likelihood and cost-effectiveness of mediation in the particular case.

The judgment determined costs and related consequential matters following an inquiry into damages in earlier proceedings. The court had found that the second claimant was entitled to damages calculated by reference to 10% of the defendant’s selling price for each infringing frame. The parties agreed the damages and interest totalled £2,859.20, leaving a repayment due after an interim payment.

The court then considered competing Part 36 offers, the parties’ conduct, the costs of an interim payment application and case management conference, later applications, interest and set-off. The central issue was the appropriate costs order in light of the offers and the parties’ conduct.

1. The court held that costs were discretionary, but the discretion was constrained by the guidelines in CPR 44.2 to CPR 44.4 and, where applicable, CPR 36.14. The warning in Bolton Metropolitan District Council v Secretary of State for the Environment [1995] 1 WLR 1176, as referred to in R (Corner House Research) v Secretary of State for Trade and Industry [2005] EWCA Civ 192; [2005] 1 WLR 2600, concerned flexibility and attention to the particular case, not unregulated freedom.

2. The defendant’s first Part 36 offer had been withdrawn, so its usual automatic consequences did not apply under CPR 36(6)(a). It nevertheless remained relevant under CPR 44.2(4)(c). Applying the approach discussed in Ford v GKR Construction Ltd [2000] 1 WLR 1397, the absence of reasons could count against an offeror where the recipient was left unreasonably in the dark. On the facts, the claimant had sufficient information to assess the offer and should have accepted it.

3. Following Tinkler v Elliott [2012] EWCA Civ 1289; [2013] C.P. Rep 4, the defendant’s status as a litigant in person did not justify additional indulgence. The claimant’s costs were therefore allowed only up to 19 September 2013.

4. The refusal to mediate did not count against the defendant because mediation was unlikely to succeed and was unlikely to be cost-effective on the facts.

5. The defendant was awarded £12,210 in costs, subject to the applicable costs caps. After setting off the claimant’s £2,500 award, the net costs payable were £9,710 within 14 days. Interest was ordered on the damages and costs as specified in the judgment.