Seymour Young v The Chief Constable of the Warwickshire Police

The court has a discretion as to whether costs are payable, their amount and when they are to be paid. 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 and admissible settlement offers. A structured approach requires the court to decide whether a costs order is appropriate, identify the unsuccessful and successful parties, and then consider any reason for departing from the general rule. Criticism of a party’s conduct does not necessarily justify departure. The court may retain the general rule where the claim was fundamentally defective, the litigation was high-risk, and the conduct did not reach the requisite level of seriousness.

The claimant appealed against Master Davison’s order striking out his claim against the Chief Constable and the Director of Public Prosecutions. The appeal was dismissed on 21 December 2021. The court then considered the appropriate costs order, including whether confusion concerning a meeting and alleged misleading information justified departing from the order that the unsuccessful claimant pay the respondents’ costs. The respondents also argued that the Master’s costs order could not be revisited.

1. The court rejected the jurisdictional objection. The appeal concerned an order striking out the claim. If the appeal had succeeded, the claim would have been reinstated and the costs of the action would have been at large. It was therefore open to the court to make an order concerning the costs of the action as well as the appeal.
2. Under CPR Rule 44.2, the making and terms of a costs order are matters of discretion. The general rule is that the unsuccessful party pays the successful party’s costs, subject to consideration of all the circumstances. The court applied the structured guidance in Straker v Tudor Rose (a firm) [2007] EWCA Civ 368: decide whether a costs order is appropriate; apply the general rule; identify the successful party; and consider any reason for departing from the rule, giving reasons for the decision.
3. There was no sufficient basis for departure. The claim was fundamentally defective because the claimant had failed to plead foresight of damage, a serious omission which made the claim doomed to fail. The claimant’s decision not to engage in proposed ADR was also relevant.
4. The court did not resile from its criticisms of the respondents in the substantive judgment. Those criticisms did not amount to conduct sufficiently reprehensible to justify depriving the successful respondents of their costs. Earlier clarity about the meeting might have led to abandonment of the claim against the First Respondent, but the respondent’s costs were part of the risk undertaken in bringing high-risk litigation involving serious allegations.
5. The Master’s costs order stood. The claimant was additionally ordered to pay the respondents’ costs of the appeal.

• High Court (Queen’s Bench Division): Master Davison ordered the claimant’s claim struck out and made a costs order on 21 February 2020.
• High Court (Queen’s Bench Division): Mr Justice Martin Spencer dismissed the claimant’s appeal against the Master’s order on 21 December 2021.
• High Court (Queen’s Bench Division): on 2 March 2022, the court refused to depart from the existing costs order and ordered the claimant to pay the respondents’ costs of the appeal.