Clutterbuck & Anor v Cleghorn

Where an appeal succeeds in relation to some claims but fails in relation to others, costs should ordinarily reflect the issues on which each party prevailed. The court may make issue-based costs orders rather than reserve all costs until the litigation concludes, particularly where the relevant issues have been determined and the parties have provided insufficient information for a single proportionate order. Costs attributable to struck-out claims may be awarded immediately, while residual costs of surviving claims may remain costs in the action until further order. Case-management directions should ensure that statements of case reflect the appellate outcome, with wider amendments requiring permission.

The claimants appealed from an order made by Edward Murray, sitting as a Deputy Judge of the Chancery Division, in proceedings concerning the Cliveden, Pont Street and Oriel Claims. The deputy judge had struck out the Pont Street and Oriel Claims and had ordered the claimants to pay the defendant’s costs of the proceedings on the standard basis, with £413,000 paid on account.

The Court of Appeal’s substantive decision restored the Cliveden Claim but upheld the striking out of the Pont Street and Oriel Claims. This judgment concerned the consequential form of order, including costs, amendments to statements of case, further directions, and a case management conference.

1. Disposition. The appeal succeeded in relation to the Cliveden Claim and failed in relation to the Pont Street and Oriel Claims. The application to adduce further evidence was refused. The claim form and statements of case relating to the Pont Street and Oriel Claims were struck out.
2. Costs of the appeal and strike-out application. Neither side was the overall winner. The appropriate approach was to award each party the costs of the issues on which it prevailed. The claimants were therefore awarded their costs relating to the Cliveden Claim, while the defendant was awarded his costs relating to the Pont Street and Oriel Claims and the further evidence application. The same issue-based approach applied to the application before the deputy judge.
3. The court declined to reserve those costs. It had taken account of the relative value of the claims and the claimants’ conduct, including the breach of the Aldi Stores guidelines and the overlap with the Al Amoudi proceedings. Those matters did not justify denying the claimants recognition of their success on the Cliveden Claim, which had not constituted an abuse of process.
4. Residual and future costs. No order was made at this stage concerning residual costs of the Cliveden Claim. They remained costs in the action until further order. No assessment was to take place without an order of a High Court judge or Master, although the parties had liberty to apply for payment on account when sufficient evidence became available.
5. Case management. The Cliveden Claim was allocated to the multi-track and the parties were not required to prepare, file or serve costs budgets. The claimants were ordered to amend their particulars of claim so that they reflected the surviving claim, followed by consequential amendments to the defence and reply. Wider amendments or disclosure requests required an application at the CMC. The matter was restored before a Master for a case management conference.

• Court of Appeal (Civil Division) — The appeal from the order of Edward Murray, sitting as a Deputy Judge of the Chancery Division, was allowed in part. The Cliveden Claim was restored; the striking out of the Pont Street and Oriel Claims was upheld; and the further evidence application was refused.