Bernadette Rogers v Andrew Wills

Costs in a split trial are ordinarily dealt with when the relevant stage concludes. The court retains discretion to defer costs of a liability trial where there is a real possibility that the quantum result will affect entitlement to those costs, particularly where recovery may be nominal or nil. That exception did not apply where the claimant was certain to recover more than a nominal sum. Possible without-prejudice communications, without evidence that an admissible offer existed or knowledge of its terms, did not justify postponing the decision. The successful party was therefore entitled to liability-stage costs under CPR rule 44.2, together with a payment on account.

The claimant succeeded at the liability trial in establishing a contract with her late mother for care services at a reasonable price. The court also held that she would have been entitled to the value of the services in unjust enrichment if the contractual claim failed. The amount remained to be determined at a later quantum trial.

The claimant sought her costs of the liability trial. The defendant argued that costs should await the quantum trial because the overall costs result might favour him and because there might have been without-prejudice communications. The application concerned whether liability-stage costs should be determined immediately.

1. The court’s power to order costs was discretionary under CPR rule 44.2(1). Where an order was made, the general rule was that the unsuccessful party paid the successful party’s costs, subject to the court’s power to make a different order and to consider conduct, relative success and admissible settlement offers.

2. In a split trial, the costs of each self-contained stage should generally be dealt with when that stage concluded. The fact that liability and quantum had been separated for case-management reasons did not itself require costs to be postponed.

3. Postponement could nevertheless be appropriate where there was a real possibility that the quantum outcome would affect the parties’ entitlement to liability-stage costs. This included a case where a claimant successful on liability might recover nothing or only nominal damages, so that the defendant might be regarded as the successful party if the litigation had been tried together.

4. That possibility did not arise here. The claimant had established an entitlement to payment for care services, and the sum could not be nominal. The claimant was the successful party on the liability stage.

5. Possible without-prejudice communications did not justify delay. There was no evidence that any offer had been made, and no admissible offer whose terms could be considered. The court could make an interim costs order without being fettered by an undisclosed or prima facie inadmissible offer.

6. The defendant was ordered to pay the claimant’s liability-stage costs on the standard basis, subject to detailed assessment, and £75,685.50 on account under CPR rule 44.2(8).

7. The defendant’s personal liability for costs was distinct from any possible right to indemnity from the estate. The estate was not a legal person and could not itself be a party or solicitor’s client. Any indemnity question was governed separately, including by CPR rule 46.3 and PD 46 paragraph 1. The observations concerning indemnity and a possible Beddoe order were not necessary to the costs order.