Edel Marie Magee & Ors v John Wade Crocker & Ors

Costs are determined by a broad assessment of overall success and the conduct of the proceedings. A late amendment does not automatically entitle the opposing party to the costs incurred before amendment. Where the amendment merely expresses the same factual case by a different legal label, the court may award the successful party its costs throughout, subject to an appropriate reduction for issues unsuccessfully pursued.

Indemnity costs require conduct outside the ordinary and reasonable conduct of litigation. An unsuccessful allegation of dishonesty creates no presumption in favour of indemnity costs. A payment on account under CPR 44.2(8) should be a reasonable estimate of the likely assessed costs, with an approved costs budget providing an appropriate starting point.

The judgment determined consequential costs issues following the trial judgment in Edel Marie Magee & Ors v John Wade Crocker & Ors, [2024] EWHC 1723 (Ch), and the earlier amendment judgment, [2024] EWHC 1874 (Ch).

The Fitzpatrick Trustees had succeeded on declaratory relief concerning the 2014 Transfer and on a late-amended case that the 2010 SHA had been novated. Mr Crocker had succeeded on some issues, including the rejection of assignment and promissory estoppel arguments, and had brought an unsuccessful Part 20 claim against Mr Fitzpatrick. The court had to determine the appropriate allocation and basis of costs, interest, and payments on account.

1. The court amended the proposed order so that the declarations were made in determination of the Claimants’ claim.

2. The Fitzpatrick Trustees were ordered to pay Mr Crocker’s costs of the Amendment Application on the standard basis. Although they were technically successful, the application was late and addressed matters that could and should have been dealt with earlier.

3. The court declined to apply the general approach in Beoco Ltd v Alfa Laval Co Ltd [1995] QB 137. The novation amendment did not substantially alter the factual case Mr Crocker had to meet. It was another legal formulation of the same underlying dispute concerning the parties’ discussions and the 2014 Transfer. Following Begum v Birmingham City Council [2015] EWCA Civ 386, the Fitzpatrick Trustees were awarded 90% of their costs of the Claim and the Part 20 Claim/Counterclaim, reflecting their overall success but also the late amendment and unsuccessful assignment and promissory estoppel arguments.

4. Mr Crocker was ordered to pay Mr Fitzpatrick’s costs of the Part 20 claim on the standard basis. Indemnity costs require conduct outside the ordinary and reasonable conduct of proceedings. The unsuccessful dishonesty allegations did not create a presumption for indemnity costs, applying Thakkar v Mican [2024] EWCA Civ 552. The allegations were serious, but the court did not find that Mr Crocker had necessarily lied.

5. Under CPR 44.2(8), payments on account were required. An approved costs budget was a sensible starting point, subject to appropriate percentages and adjustments. Mr Crocker was ordered to pay £400,000 to the Fitzpatrick Trustees and £385,723.14 to Mr Fitzpatrick by 17 October 2024, with interest on the recoverable costs at 2% until the order and 8% thereafter.

The judgment itself was a first-instance consequential costs decision following the High Court trial judgment at [2024] EWHC 1723 (Ch) and the amendment judgment at [2024] EWHC 1874 (Ch). No application for permission to appeal was made.