WH Holding Ltd & Anor v E20 Stadium LLP

Under Civil Procedure Rules 1998, Part 44, costs are discretionary. The court must consider all the circumstances, including pre-action conduct, whether it was reasonable to raise or contest an issue, and the manner in which the proceedings were conducted. A party that makes an urgent injunction application before identifying any specific non-compliance, and then substantially reformulates the relief sought, may be ordered to pay the other party’s costs even if some relief is obtained. Where a Part 8 claim is justified by an equivocal stance but the dispute was insufficiently defined and is compromised on terms reflecting both parties’ positions, the appropriate order may be no order as to costs.

West Ham sought urgent injunctive relief requiring E20 to cooperate and provide information relating to an FA disciplinary charge concerning crowd disturbances at the Stadium. The application was initially framed broadly, including alleged obligations under the Concession Agreement, and was substantially revised during hearings before Fancourt J on 9 and 10 July 2018.

West Ham subsequently issued a claim under Civil Procedure Rules 1998, Part 8, seeking declarations as to E20’s contractual or implied duty to cooperate. The claim was resolved by consent on 5 December 2018, with declarations reflecting formulations proposed by both parties. The issue before Snowden J was the appropriate costs order for the injunction proceedings and the Part 8 claim.

1. The court had a discretion under Civil Procedure Rules 1998, Part 44, to make such order as to costs as appeared just. The general rule concerning the unsuccessful party was subject to all the circumstances, including conduct before and during proceedings, the reasonableness of raising or contesting issues, and the manner in which a case was pursued or defended.

2. West Ham’s injunction application was unjustified. At the time it was made, E20 had not materially failed to comply with any request for cooperation. The asserted failure to answer the earlier letter was misconceived, and the application did not identify specific cooperation requested and withheld. When E20 objected to the form of the order, West Ham adopted the approach of identifying specific questions, which E20 then answered. The relief ultimately obtained therefore conformed substantially to E20’s suggested procedure.

3. The fact that E20 resisted and lost the argument concerning evaluative questions did not alter the result. That issue arose only because of the way West Ham’s draft questions were produced, occupied little court time, and caused no material additional expense. West Ham was ordered to pay E20’s costs of and occasioned by the injunction applications, assessed on the standard basis if not agreed.

4. The Part 8 claim stood differently. E20’s equivocal position created a live issue as to the meaning of the Concession Agreement, so West Ham was justified in issuing the claim. However, West Ham had not clearly defined the dispute, and E20 responded at the first reasonable opportunity with observations incorporated into the compromise. Neither party was therefore the successful party, and there was no order as to the costs of the Part 8 claim.