Bernadette Rogers v Andrew Wills

The claimant sought an order for the defendant to pay her costs of the liability trial. The court held that costs are a matter for judicial discretion under CPR rule 44.2, but that as a general rule costs of discrete issues should be dealt with when those issues are concluded. The authorities on split trials (including Weill v Mean Fiddler, Fluor, and Langer) were considered and the court accepted that, although a judge may defer a costs order where the outcome of quantum could affect entitlement to costs of liability, in the present case the claimant had established liability and there was no realistic prospect of a purely nominal or de minimis recovery.

There was no admissible settlement offer before the court to affect the exercise of the costs discretion and the defendant's contention about possible "without prejudice" communications did not preclude making a costs order. Applying the general rule, the court ordered the defendant to pay the claimant's costs of the liability trial on the standard basis, to be subject to detailed assessment if not agreed, and ordered a payment on account equal to 90% of the claimant's approved costs budget (£75,685.50).

The claimant, who had provided care to her late mother, previously succeeded at a liability trial where the judge found there had been a contract to pay a "reasonable price" for the services or, alternatively, an entitlement under unjust enrichment. The quantum of the sum to be paid remains to be determined at a further trial. The claimant applied for an order that the defendant pay her costs of the liability trial.

The defendant resisted the application on two principal grounds: first, that the court should postpone any costs decision until after the quantum trial because the overall costs "winner" might be the defendant depending on quantum; and second, that there might be inadmissible "without prejudice" (including Calderbank) communications which the judge could not take into account and which might justify deferral.

The court reviewed the applicable principles: costs are discretionary under CPR rule 44.2; where litigation is split into discrete stages costs of each stage may normally be dealt with on conclusion of that stage; but a judge may defer a costs order where the outcome of later stages could materially affect entitlement to costs of the earlier stage (as discussed in Weill v Mean Fiddler and subsequent authority including Fluor and Langer). The judgment emphasised the policy favouring discrete issue-based costs orders and the factors the court may take into account, including parties' conduct and admissible settlement offers (CPR 44.2(4)).

The court concluded that in this case the claimant was the successful party on liability and that the likely quantum would not be nominal given findings that (among other things) the defendant had set aside funds and had accepted the claimant should receive compensation. There was no admissible offer before the court to affect the exercise of its discretion and mere suggestion of possible without prejudice communications did not prevent the court from making an interim costs order. The judge therefore ordered the defendant to pay the claimant's costs of the liability trial on the standard basis, to be subject to detailed assessment if not agreed, and ordered a payment on account equal to 90% of the claimant's approved costs budget, namely £75,685.50. The judgment also made observations about the defendant's potential entitlement to indemnity out of the estate but did not determine indemnity questions themselves.

The court ordered the defendant to pay the claimant's costs of the liability trial on the standard basis, to be subject to detailed assessment if not agreed, and ordered a payment on account of those costs equal to 90% of the claimant's approved costs budget (£75,685.50). Rationale: the claimant was the successful party on liability, the likely recovery at quantum was not merely nominal, there were no admissible settlement offers before the court to affect the exercise of the discretion, and the general policy favours dealing with costs of discrete stages when concluded.