Captain Nigel Collingwood & Anor v Irwin Mitchell LLP

For costs purposes, success is assessed by the substance of the outcome of the application as a whole, not by success on an individual issue. Where a defendant fails to obtain dismissal or strike-out of the underlying claim, the claimant may properly be treated as the successful party even though significant allegations against that defendant are removed. The general rule in CPR 44.2 remains subject to all the circumstances, including party conduct, delay, partial success and the reasonableness of pursuing particular issues. A late without-prejudice save-as-to-costs offer, served together with a substantial amendment application shortly before the hearing, will ordinarily have little or no costs significance.

The claim was a professional negligence claim brought against Irwin Mitchell LLP, formerly described as Thomas Eggar LLP. The defendant applied for summary judgment or strike-out under CPR 24.2 and CPR 3.4, arguing that the wrong defendant had been sued and that the claim was statute-barred. The claimants applied to add or substitute Rhealisation LLP as defendant.

In the earlier judgment, the court rejected limitation-based dismissal, found that Irwin Mitchell was the wrong defendant, permitted substitution of Rhealisation LLP, and struck out allegations of direct liability against Irwin Mitchell. This judgment determined costs and the form of order.

1. Summary Judgment Application. The claimants were the successful party when the application was viewed as a whole because the defendant failed to obtain dismissal or strike-out of the underlying claim. The court rejected the limitation ground and did not dismiss the claim before trial.
2. The defendant nevertheless succeeded on the wrong-party issue and in striking out the allegations that Irwin Mitchell was directly liable for Thomas Eggar LLP’s alleged negligence. Those successes were material circumstances under CPR 44.2, but did not make the defendant the successful party overall.
3. The general rule that the unsuccessful party pays the successful party’s costs was displaced. The need for substitution resulted from the claimants’ failure to give timely notice, their mistaken understanding of the relationship between Thomas Eggar LLP and Irwin Mitchell, and their late amendment application. The defendant acted reasonably in contesting that application. There should therefore be no order as to costs on the Summary Judgment Application.
4. The claimants succeeded on the Amendment Application because Rhealisation LLP was substituted as defendant. However, the same conduct and delay justified disapplying the general rule. There should be no order as to costs on that application also.
5. The claimants’ without-prejudice save-as-to-costs offer had no costs consequences. It was made only eight days before the hearing and was served with a substantial amendment application requiring detailed consideration. The court drew an analogy with the usual 21-day period for Part 36 offers.
6. The order was to record that the Summary Judgment Application was dismissed and the Amendment Application allowed, subject to paragraphs 4 and 5 of the Particulars of Claim being struck out, followed by appropriate directions.