Bonsor v Bio Collectors Ltd

Where a successful party has failed on a separate issue, an issue-based costs order is not automatic. The court must identify a genuinely discrete or circumscribed issue and decide, having regard to all the circumstances, whether justice requires departure from the general rule that costs follow the event.

Relevant considerations include the reasonableness of pursuing the issue, the conduct of the parties, whether it materially increased preparation or trial costs, and whether the costs can practicably be disentangled. If detailed allocation is impracticable, the court should consider awarding a proportion of the overall costs. The assessment is necessarily broad-brush; time spent at trial is a useful starting point, not a precise measure.

The claimant succeeded at trial on liability for injuries caused by the defendant’s employee, for which the defendant was vicariously liable. She failed on separate allegations that the defendant itself should have fitted additional warning equipment to the vehicle, including a Fresnel lens.

The parties agreed that the claimant was the successful party overall but disputed whether her recoverable costs should be reduced to reflect the unsuccessful equipment allegations. The defendant sought an issue-based reduction. The court reconsidered aspects of its draft costs judgment after receiving further submissions and determined the appropriate costs order.

1. Reconsideration of draft judgment. The court had discretion to receive further submissions and reconsider a draft judgment. This was an exceptional course, justified by the substantial difference between the original and further evidence concerning trial time and by the fact that the original percentage assessment had not been the subject of submissions.
2. Applicable costs principles. CPR 44.2 gives the court a broad discretion. The general rule is that the unsuccessful party pays the successful party’s costs, but the court must consider all the circumstances, including conduct, partial success, the reasonableness of raising or pursuing an allegation, and the manner in which the case was conducted.
3. Discrete issue. An issue-based order requires an issue which is genuinely discrete or circumscribed. The claimant’s equipment allegations were distinct from the driver-negligence allegations because they were pursued against the defendant in its own right and concerned the absence of additional safety equipment. They therefore constituted a discrete issue. The mere fact that a successful party failed on an issue does not, by itself, justify reducing its costs.
4. Whether departure was just. The allegations were initially reasonable to raise, but the evidential basis was unsatisfactory. The claimant had pursued the allegations despite insufficient evidence, abandoned two allegations late, and the Fresnel lens issue materially increased trial time. These factors justified departing from the usual rule. The defendant’s conduct and its Part 36 offer were neutral on this issue.
5. Proportionate order. A detailed issue-based assessment risked difficulties in disentangling causation-related costs. A proportionate order was practicable. The assessment had to be broad-brush. Trial time was only a starting point and could not be applied mechanically to total costs. Standing back, the appropriate reduction was 10%. The claimant was awarded 90% of her costs.

The judgment followed a liability judgment in the same proceedings, [2020] EWHC 669 (QB), in which the claimant succeeded against the defendant. The present judgment determined the consequential dispute over costs.