Sid-Ali Atmani & Ors. v Royal Borough of Kensington & Chelsea & Anor.

The court has a broad discretion when deciding costs, subject to the general rule that the unsuccessful party pays the successful party’s costs. The court must consider all the circumstances, including the parties’ conduct, the reasonableness of pursuing issues, proportionality and the manner in which the case was conducted.

For a complex application, the court may assess each issue separately before making an overall order where an issue-based order would be disproportionate. A claimant within the QOCS regime is not immune from interlocutory costs orders. The QOCS provisions concern enforcement of costs orders and do not prevent such an order being made.

This was a costs judgment ancillary to a case management decision concerning claims arising from the Grenfell Tower fire. It concerned the costs of the BLJ Claimants’ application dated 5 April 2022, which sought, among other matters, to lift a stay, permit the first defendant to enter a defence, obtain judgment in certain claims and secure a payment on account of liability costs.

The application was determined without a hearing under CPR 23.8. The court had to determine the appropriate costs order for each part of the application and whether the QOCS provisions prevented the defendants from obtaining an interlocutory costs order.

1. RBKC was the successful party in broad terms. The court nevertheless assessed the principal elements of the application separately before stepping back to make an overall order, because an issue-based costs order would have been unnecessarily complex and disproportionate.

2. Under CPR 44.2(1) and (2), the court has a wide discretion as to what costs should be payable and when. The general rule is that the unsuccessful party pays the successful party’s costs, but a different order may be made. Under CPR 44.2(4), all the circumstances must be considered, including conduct, the reasonableness of raising or contesting an issue, proportionality and the manner in which the case was pursued.

3. The application to lift the stay was unsuccessful. Given the additional issues raised beyond obtaining information about the ADR process, the BLJ Claimants were ordered to pay 50% of the defendants’ costs of that part.

4. The claimants succeeded in obtaining judgment in nine claims by consent and were awarded the costs of that application. The application for judgment in a further 44 claims failed, so the defendants were entitled to those costs. The application for a payment on account of liability costs was refused because the information required to assess the order had not been provided. Although a successful claimant who has obtained an order for costs is ordinarily entitled to such a payment unless there is good reason otherwise, the principle identified in Mars UK Ltd v Teknowledge Ltd was applied, and there was good reason to refuse the application.

5. CPR 44.13(1) and CPR 44.14(1) did not prevent the order sought by the defendants. QOCS protection does not immunise claimants from interlocutory costs orders; the relevant provisions concern enforcement of costs orders.

6. The defendants were liable for the costs of the application for judgment in the nine claims, subject to detailed assessment if not agreed. The remaining costs of the application were ordered to be defendants’ costs in the case.

First-instance ancillary costs judgment. The judgment states that it concerned costs arising from the case management decision reported at [2022] EWHC 2006 (QB).