Musst Holdings Limited v Astra Asset Management UK Limited & Anor

Where an interlocutory application is resolved substantially by agreement without agreement on costs, the court retains a broad discretion. In all but straightforward cases there is a real risk that no order for costs will be appropriate.

The court should consider the parties’ respective success and failure, the conduct and timing of the application, the extent to which issues were narrowed by correspondence, the relationship between related proceedings, and the difficulty of fairly apportioning costs. A costs order may properly be refused where both parties achieved partial success and the costs cannot fairly be divided.

This was a first-instance costs judgment arising from two related proceedings. The court determined the costs of a Fresh Action issue and a Security for Costs application after most other consequential costs issues had been agreed.

Astra obtained security for costs of £180,000, while Musst resisted a larger payment and succeeded on an argument concerning money paid into court. The central issue was whether either party should receive its costs, having regard to the parties’ mixed success, the timing and conduct of the applications, and the substantial agreement reached between them.

1. Fresh Action issue. Both parties had succeeded in part and failed in part. The costs were modest and it was not proportionate or practicable to assess costs incurred before and after Musst’s concession. The appropriate order was no order as to costs.
2. Security for Costs application. Astra succeeded in obtaining security of £180,000. Musst had taken too long to respond, and before the Court of Appeal had dismissed the appeal it was open to Astra to resist reliance on money paid into court in the first action. Musst nevertheless succeeded in resisting security of £900,000 upfront and in establishing that the money paid into court was adequate security.
3. Where an application is substantially resolved by agreement without agreement as to costs, the court has a discretion whether to award costs and there is a real risk that it will make no order in all but straightforward cases: see BCS Software Solutions Ltd v C Brewer and Sons Ltd [2003] EWCA Civ 939 and Gossage v Bishton [2012] EWCA Civ.
4. The related proceedings, the timing of the strike-out application and appeal, the parties’ conduct and the difficulty of identifying and apportioning success made the matter far from straightforward. In the circumstances, the fair order was no order as to costs for the Security for Costs application.
5. The court adopted Astra’s figures for the agreed payments on account: £32,475.32 for the Books and Records issue and £11,042.50 for the Defamation indemnity costs issue. The parties were directed to complete and agree the remaining orders.

Not an appellate judgment. The judgment refers to an earlier appeal in the related proceedings, which the Court of Appeal dismissed, but gives no citation for that decision.