Alamantas Ruzge & Anor v Taimour Asghar (Costs)

In assessing appeal costs, the successful party is identified by considering the appeal as a whole, including the practical significance of the grounds on which each side succeeded. Success on some grounds does not prevent a party being the successful party overall. The costs order may include an appropriate deduction for failed grounds.

Where a party improves on a valid Part 36 offer, the costs consequences of Part 36 may justify indemnity costs from expiry of the relevant acceptance period. The court may adopt a broad, evaluative approach when determining the percentage deduction and assessing disputed costs.

The claimants appealed from a decision of Mr Recorder Midwinter KC in the Peterborough County Court. Permission was granted on grounds concerning harassment, exemplary damages, assault, indemnity costs and the percentage of costs recoverable. The appeal was allowed on the assault ground and on the percentage of recoverable costs, which increased from 40 per cent to 80 per cent; the other permitted grounds failed.

The court therefore had to determine the costs of the appeal, including which party was successful overall, the effect of a Part 36 offer, the amount of recoverable costs, and the appropriate deduction for the grounds on which the claimants failed.

1. Disposition. The claimants were the successful party on the appeal and were entitled in principle to their costs, subject to a deduction reflecting their failure on the harassment and exemplary-damages grounds.
2. The court assessed success by standing back and considering the appeal as a whole. The fact that the claimants succeeded on two of the five live grounds did not make the defendant the successful party. The defendant could have protected his position by making appropriate Part 36 offers concerning the assault claim and the recoverable percentage of costs, but did not do so.
3. The claimants’ improvement on their Part 36 offer concerning the percentage of costs meant that the costs of that ground should be awarded on the indemnity basis from 10 October 2022, following expiry of the relevant period.
4. On detailed assessment, the court allowed the claimed attendances and personal attendances on opponents, subject to an admitted £150 reduction. It allowed half of the disputed overlapping work relating to documents and counsel’s fees, producing total deductions of £1,754 and net costs of £20,967.80.
5. Taking a broad view of the successful and unsuccessful grounds, the appropriate deduction was 20 per cent. The net costs award was rounded to £16,775. VAT was awarded on half of the allowed costs because one claimant was VAT-registered and the other was not.
6. The claimants were awarded appeal costs of £18,452.50 in total.

• High Court (King's Bench Division): The appeal from the Peterborough County Court decision of Mr Recorder Midwinter KC dated 17 June 2022 was allowed in part on 7 November 2023. The assault award was increased by £500 and recoverable costs were increased from 40 per cent to 80 per cent. The present judgment determined the consequential costs order.
• High Court (King's Bench Division): Permission to appeal was granted by Soole J on 19 June 2023 on five grounds; permission was refused on the interest-on-costs ground and the counterclaim ground had been abandoned.