The University of Manchester v John McAslan and Partners Ltd & Anor

Where parties achieve mixed procedural outcomes on applications concerning pleadings, the court may order that the relevant costs be costs in the case. That approach may be appropriate where one party obtains directions for a revised pleading but fails to secure the more draconian orders sought. Work undertaken before the hearing may also be treated as costs in the case where it substantially overlaps with work that would ordinarily have been required to prepare the party’s defence.

The judgment dealt with costs following an earlier judgment on applications concerning the claimant’s pleading. The court had accepted that the Particulars of Claim required further explanation and particularisation, much of which was supplied in a cross-referencing document. The second defendant obtained directions for a revised pleading but did not obtain all the orders sought. The issue was the appropriate allocation of the parties’ costs.

1. Costs of the first defendant. The first defendant had taken a broadly neutral position. Its costs were ordered to be costs in the case.
2. Costs of the second defendant’s preparatory work. Although the Particulars of Claim required further explanation and particularisation, much of the substantial work undertaken by the second defendant before the hearing would in large part have been required in preparing its Defence. That work was therefore ordered to be costs in the case.
3. Costs of the hearing. The second defendant obtained directions for a revised pleading, but failed to obtain orders as draconian as those sought. The court regarded the hearing as a form of procedural clearance in substantial anticipated litigation. The fair order was that the hearing costs be costs in the case.
4. The court considered it sensible, once the amended pleading had been finalised, to use a substituted pleading with fresh paragraph numbering. If necessary, a table of derivations should identify the changes.

This was a first-instance costs judgment following the court’s earlier judgment on applications handed down on 25 November 2020. The citation of that earlier judgment is not stated in the judgment.