The Czech Republic v Diag Human SE & Anor

When assessing costs summarily after related applications, the court may adopt a broad-brush approach rather than undertake a detailed assessment. The court should consider the parties’ relative success, the reasonable costs attributable to each issue, factual and submission overlap, and whether an application was unjustifiably pursued. A costs order may therefore depart from an equal division even where the parties achieved mixed outcomes.

The judgment concerned the costs of applications by the defendants for security for costs and security for an award. The defendants succeeded on security for costs but lost on security for the award. The court was required to determine the appropriate overall allocation and amount of costs on a summary basis, having regard to the parties’ statements of costs, the overlap between the applications, the conduct of the submissions, and the apparent strength of the unsuccessful application.

1. The defendants had won on security for costs, while losing on security for the award. Their existing unlimited undertaking was regarded as providing substantial security.
2. A 50/50 division between the two applications was broadly fair because, although more hearing time had been spent on security for costs and more preparation time on security for the award, there was substantial factual overlap and submissions concerning the claimant’s previous conduct had been used in both contexts.
3. The parties’ costs were not treated as equal for the purposes of the final order. The defendants’ claimed costs were regarded as excessively high, and the court considered that reasonable costs on both sides would have been approximately the same.
4. The court considered that submissions made for the security-for-award application were substantially wrong on important factual matters, including the effect of the judgment of Mr Justice Burton and the position concerning costs in Luxembourg. The application itself should not have been made and was a doomed application.
5. Taking these matters together and applying a broad-brush assessment, the court ordered the defendants to pay £50,000 to the claimant.