JAKE VEASEY v COLIN MACDOUGALL & Ors

Under Civil Procedure Rules 1998, costs remain in the court’s discretion, with costs usually following the successful party in the litigation as a whole. Success or failure on individual issues does not automatically require an issues-based costs order. Before making such an order, the court must consider whether a proportion-of-costs or time-limited order is practicable. Issues-based orders are exceptional. Where one party is overall successful but has failed on some issues, the court may award that party its costs subject to an appropriate proportionate reduction.

The petitioner sought specific disclosure in an unfair prejudice petition. The application concerned about a dozen categories. Four were abandoned by the hearing, five categories were ordered to be disclosed, and three were refused. The court had previously determined the disclosure applications in [2022] EWHC 864 (Ch).

The issue was which party was successful for costs purposes and whether the costs should be divided by issue, or instead awarded to the overall successful party subject to a proportionate reduction.

1. Applicable principles. Costs were in the court’s discretion under Civil Procedure Rules 1998, rule 44.2. The general rule was that the unsuccessful party in the proceedings pays the successful party’s costs, subject to all the circumstances, including party conduct and admissible settlement offers.
2. Order of consideration. Rule 44.2(7) required the court, before considering an issues-based order under rule 44.2(6)(f), first to consider whether a proportion-of-costs order or a time-limited order was practicable. Success on one issue and failure on another did not, without more, require an issues-based order.
3. Authorities. The reference in Kastor Navigation Co Ltd v Axa Global Risks (UK) Ltd to the “successful party” meant the successful party in the litigation, rather than the successful party on any particular issue. Summit Property Ltd v Pitmans concerned an unusual and exceptional case. It did not support the respondents’ submission that an issues-based order must be considered merely because the parties had mixed success.
4. Application. The petitioner was the overall successful party. The most important categories concerned company financial information, including credit-card statements, bank statements and expense documents, and the petitioner succeeded on those categories. The four categories not pursued became unnecessary after information or confirmations were provided following issue of the application.
5. Order. The petitioner had nevertheless failed on two issues which took time, although they were less important. The respondents were therefore ordered to pay 90% of the petitioner’s costs of the application. The parties were invited to agree a reasonable sum on account, failing which written submissions would be considered on the papers.