Illiquidx Limited v Altana Wealth Limited & Ors

Costs remain within the court’s broad discretion. Although the usual rule is that the unsuccessful party pays the successful party’s costs, the court may make a different order after considering all the circumstances, including conduct, partial success and settlement offers.

Costs applications should be addressed sequentially: determine whether an order is appropriate, apply the general rule, identify the successful party, and then consider any reason for departure. In complex litigation, the court may take a global view rather than conduct an artificial issue-by-issue calculation. Cooperation and proportionality are particularly important in disclosure disputes.

The judgment determined costs arising from six substantive applications and cross-applications for disclosure in complex intellectual property litigation. The substantive issues had been addressed in an earlier judgment of the same court, [2024] EWHC 2191 (Ch).

The court considered costs for unsuccessful strike-out and summary-judgment applications, amendments to pleadings, witness-statement compliance, expert evidence and disclosure. The central questions were which party had succeeded on each application and whether the circumstances justified departing from the usual rule that costs follow the event.

1. General principles. Under CPR rule 44.2 the court has a wide discretion as to whether costs are payable, their amount and when they are to be paid. The general rule is that the unsuccessful party pays the successful party’s costs, but the court may make a different order after considering all the circumstances, including conduct, partial success and admissible settlement offers.
2. Sequential approach. The court adopted the approach in Straker v Tudor Rose (a firm) [2007] EWCA Civ 368: determine whether a costs order is appropriate; apply the general rule; identify the successful party; and then decide whether there is a reason to depart from the general rule, recording the reasons for any departure.
3. The defendants’ strike-out or summary-judgment application concerning AV Securities was dismissed. The claimant had entirely succeeded in resisting it, and the defendants were ordered to pay the claimant’s costs. The same order was made for the defendants’ unsuccessful application concerning injunctive relief.
4. The claimant was ordered to pay the defendants’ costs of the claimant’s amendment application concerning AV Securities. The amendment represented a conscious change in the pleaded case, and the usual principle that a party seeking amendment bears the resulting costs applied. The claimant also paid the costs of its unsuccessful remaining amendment application and expert-evidence application.
5. The claimant was ordered to pay the defendants’ costs of the application requiring compliant witness statements under CPR PD 57AC. The statements were substantially non-compliant, relied excessively on documents and contained speculation. The court declined to require a separate solicitor’s witness statement, but that limited success did not justify a deduction.
6. Disclosure costs were approached globally. CPR PD 57AD requires cooperation and disclosure directed to the issues, within reasonable and proportionate limits. Applying the proportionality approach described in UTB LLC v Sheffield United Ltd [2019] EWHC 914 (Ch), the court made no order as to costs on both disclosure applications because both parties had achieved partial success and an artificial issue-by-issue analysis would not achieve justice.
7. The court declined to undertake summary assessment and directed that reasonable sums on account should be addressed for those parts where immediate costs orders had been made, with the parties to agree the figures or seek a short hearing.

• High Court (Intellectual Property List): The substantive applications were determined in the earlier judgment, [2024] EWHC 2191 (Ch). The present judgment determined the consequential costs issues.