CCP Graduate School Ltd v The Secretary of State for Education

The court has a broad discretion under Civil Procedure Rules 1998, rule 44.2, whether to make a costs order and what form it should take. The unsuccessful party will generally pay the successful party’s costs, but the court must consider all the circumstances, including partial success and conduct before and during proceedings. Failure on subsidiary issues will not normally justify apportionment where those issues form minor facets of an overall victory. An exception may arise where a distinct part of the successful party’s case involved unnecessary or inadequately explained work. An interim payment on account should reflect the costs reasonably and proportionately recoverable on assessment. The paying party’s costs schedule is generally of limited relevance, and procedural non-compliance may be weighed when fixing the amount.

The claimant’s claim had been dismissed. The court then considered costs arising from the claim and various applications. The parties agreed that there should be no order as to the costs of the claimant’s application for permission to appeal and an extension of time.

The claimant accepted that it was generally the unsuccessful party but argued that costs should be reduced because it had succeeded on certain subsidiary issues. The defendant sought its costs, subject to an adjustment for work concerning revised spreadsheets and related witness statements, and sought an interim payment on account.

The central issues were the appropriate allocation of costs and the reasonable amount of any interim payment.

1. No order was made as to the costs of the claimant’s application for permission to appeal and extension of time, in accordance with the parties’ agreement.

2. Under rule 44.2 of the Civil Procedure Rules 1998, the court has a general discretion whether to make a costs order, the amount and timing of payment. That discretion must be exercised in a principled manner. The unsuccessful party will generally pay the successful party’s costs, subject to all the circumstances, including partial success and conduct before and during the proceedings.

3. The claimant’s success on subsidiary issues did not justify a general reduction. Those issues had not affected the outcome and were minor facets of the defendant’s successful overall case. The appropriate order was therefore that the claimant pay the defendant’s costs, subject to detailed assessment.

4. The defendant’s changing spreadsheets and related witness evidence were insufficiently explained. Half the costs of preparing those spreadsheets and witness statements was excluded, insofar as otherwise recoverable.

5. For an interim payment under rule 44.2(8), the court had to fix a reasonable sum. On a standard-basis assessment under rules 44.3 and 44.4, costs that were unreasonably incurred, unreasonable in amount or disproportionate would not be allowed. Any doubt was resolved in favour of the paying party.

6. The receiving party’s costs schedule was the primary focus. Comparing it with the paying party’s schedule was generally inappropriate, particularly where the costs had been incurred on materially different bases and fee structures. An interim payment of £75,000 was ordered. The claimant’s failure to comply with the court’s direction concerning the proposed payment was a factor in the overall assessment.

Not an appellate decision. The judgment concerns costs following dismissal of the claim and costs of related applications.