Kupeli & Ors v Sirketi (t/a Cyprus Turkish Airlines) & Anor

In joined claims, the successful party is identified by applying common sense to the real outcome. Receipt of money is a highly relevant indication of success, regardless of the number of claimants. Partial success, failure on particular issues and the parties’ conduct may justify reducing the costs recovered. Where identifying issue-specific costs would be impracticable or disproportionate, a percentage costs order may be preferable. Failure to make proper disclosure and refusal to engage in reasonable settlement discussions are relevant conduct factors under Civil Procedure Rules 1998, rule 44.2.

This was a costs judgment following the Part 1 Trial of joined claims by numerous passengers against Atlasjet and another defendant. The main judgment had found two Category 1 family groups successful, one Category 1 family group unsuccessful, dismissed the Category 2 claims, and dismissed the Category 3 test claims subject to possible amendment by other claimants.

The court had to determine which party was successful for costs purposes and whether the successful claimants’ costs should be reduced or offset because of their partial success, the issues decided against them, and the parties’ conduct.

1. Starting point and successful party. The court applied the general approach under Civil Procedure Rules 1998, rule 44.2. The principle in Jones and Ors v Secretary of State for Energy and Climate Change and Another [2013] Costs LR 230 applied equally whether claims were brought under a group litigation order or by joinder. Success required a realistic, common-sense evaluation.
2. The claimants were the successful party because, at the end of the Part 1 Trial, successful claimants would receive money from Atlasjet. The number of unsuccessful claims did not make the successful claims immaterial. The court relied on the approach in A L Barnes Limited v Timetalk (UK) Limited [2003] EWCA Civ 402, Widlake v BAA Limited [2009] EWCA Civ 1256, Day v Day, and Fox v Foundation Piling Limited [2011] EWCA Civ 790.
3. The claimants’ recovery was nevertheless partial. They had lost the List of Issues and most contractual claims. Those matters justified a reduction under rule 44.2(4)(b), but the court recognised that much of the evidence concerning Atlasjet’s systems, records and witnesses was necessary to establish the successful Category 1 claims.
4. A percentage order under rule 44.2(6)(a) was preferable to an issues-based order under rule 44.2(6)(f). Rule 44.2(7) required consideration of whether a proportionate order under rule 44.2(6)(a) or (c) was practicable before making an issues-based order. A percentage avoided difficult retrospective allocation of costs and prolonged disputes.
5. Atlasjet’s failure to disclose relevant flight logbooks and its refusal to engage meaningfully with early settlement efforts were conduct matters under rule 44.2(4)(a), rule 44.2(4)(c) and rule 44.2(5)(a). These factors supported the claimants’ costs position.
6. Atlasjet was ordered to pay 33% of the claimants’ reasonable costs of the Part 1 Trial on the standard basis. No interest on costs was awarded pending assessment or agreement.

This was a first-instance costs judgment following the Part 1 Trial and the main judgment handed down on 25 April 2016. The judgment records that some claims were concluded, some were transferred to the Central London County Court, and Category 3 claimants were given permission to seek amendment.