Surrey Searches Limited & Ors v Northumbrian Water Limited & Ors

In assessing costs after a trial of issues, the court should stand back and identify the parties’ overall success in the litigation. Success achieved through a sequence of agreed or separately argued issues is not reduced merely because a party lost on some subsidiary points. An issue-by-issue costs exercise should be avoided where it would require arbitrary or overly forensic weightings. Indemnity costs require conduct sufficiently unreasonable to take the case outside the norm; difficult, unsuccessful or unhelpful litigation conduct will not necessarily meet that threshold. A payment on account should represent a realistic estimate of likely recovery, allowing an appropriate margin of error. An approved costs budget ordinarily justifies only a modest deduction.

This was a consequential hearing following the Stage 1 trial in five related proceedings concerning environmental information and CON29DW searches. The court had previously determined six issues concerning disclosure obligations, alternative means of providing information, restrictions and exceptions, the scope of the environmental information regime, and whether the charging regime was engaged.

The consequential questions concerned declaratory relief, liability and basis of costs, payment on account, interest, permission to appeal, a stay, and further case management. The central issues were how the parties’ success should be assessed for costs purposes, whether indemnity costs were justified, and what sums should be paid pending detailed assessment.

1. Declaratory relief. The court made declarations reflecting its Stage 1 findings, with amendments limiting two findings to the claimants or persons within the circumstances identified in the judgment.
2. Liability for costs. The defendants were overwhelmingly successful on the overarching question addressed by the Stage 1 trial: whether they could contend that they were not required by the EIR to provide the CON29DW information, at least in the form requested. That overall success was not diminished by losses on some subsidiary issues, agreed issues, or issues not ultimately decided. The defendants therefore recovered 100% of their Stage 1 costs.
3. Basis of assessment. The claimants’ conduct, considered individually and cumulatively, was not sufficiently unreasonable to take the case outside the norm. The court therefore declined to order indemnity costs.
4. Payment on account. The appropriate approach was to estimate realistically the sum likely to be recovered on detailed assessment, rather than identify an irreducible minimum. Applying the guidance in MacInnes v Gross [2017] EWHC 127 (QB), the court ordered payment of 65% of incurred costs and 90% of estimated costs.
5. Interest and appeal. Pre-judgment interest on costs was fixed at 3.5%, payable from payment of the relevant invoices. Judgment-rate interest began 21 days after the order. Permission to appeal was refused because none of the five grounds had a real prospect of success or raised a novel point of law. The proceedings were stayed pending any renewed permission application or appeal, subject to liberty to apply for Defendant 6.

The judgment followed a Stage 1 trial judgment dated 28 June 2024 in the same proceedings. No citation for that judgment is stated in the judgment.