Malcolm Cohen & Anor (as joint liquidators of The Food Retailer Operations Limited) v Co-Operative Group Limited & Ors (Costs)

On a summary assessment of costs on the standard basis, the court should assess what was reasonably and proportionately incurred and reasonable and proportionate in amount. An issue-based or percentage reduction is not ordinarily justified merely because the successful party failed on an aspect of the application. It is generally appropriate only where pursuing that issue caused a longer or unnecessarily diffuse hearing, particularly where the point was unjustifiably taken. Guideline hourly rates are broad approximations, not fixed limits. Rates above them may be reasonable in substantial and complex litigation, having regard to value, complexity, urgency and importance. Unsupported or excessive attendance and travel time should be disallowed.

The joint liquidators applied to amend their points of claim and rely on expert business valuation evidence. The application was refused in the substantive judgment, [2025] EWHC 1892 (Ch), and the respondents became entitled to their costs, summarily assessed on the standard basis.

The parties agreed that the applicants would pay the respondents’ costs, but disputed quantification. The applicants sought a substantial reduction in the claimed costs and a further percentage reduction to reflect their limited success on limitation and prospects of success. The respondents sought recovery of almost all their claimed costs. The issues were the proper approach to percentage reductions, hourly rates, documentary work, and hearing attendance.

1. The application was a binary contest in which the respondents were the successful parties. The usual order that costs follow the event applied. No percentage reduction was justified merely because the respondents had failed on limitation or had not succeeded on every aspect of the substantive application.

2. Kew v Bettamix Ltd was materially different. It concerned substantial and unjustifiably pursued issues which occupied much of the hearing and caused additional costs. An issue-based order is usually justified only where the losing issue has made the hearing longer or unnecessarily diffuse. The respondents’ limitation arguments here were seriously arguable, succeeded at the first two stages of the Geo-Minerals test, and did not materially increase the hearing time or costs.

3. The respondents’ hourly rates were reasonable and proportionate. Guideline rates are broad approximations and locality is not determinative. In substantial and complex litigation, rates above guideline figures may be allowed where the value, complexity, urgency or importance of the matter warrants them.

4. The respondents’ documentary time was reasonably and proportionately incurred. However, some hearing attendance and related travel and waiting time was insufficiently justified or excessive. The court therefore disallowed £3,886.

5. The respondents’ costs were summarily assessed at £177,488.28, payable by the applicants by 4.00 pm on 19 August 2025.