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When is an issue based costs order appropriate?

18 June 2020

This decision in the recent case of Camilla Bonsor v Bio Collectors Ltd, gives some welcome guidance on where there may be costs consequences for discrete issues raised by parties in litigation. Sukhjit Dhadwal, Senior Manager/Costs Lawyer considers this case in greater detail.

The High Court held where a successful party is unsuccessful in pursuing a discrete issue at trial, an issue based costs order is appropriate. In the recent case of Camilla Bonsor v Bio Collectors Ltd, Mr Peter Marquand sitting as a Deputy High Court Judge, made an issue based order for costs reducing the Claimant's costs by 10% despite the Defendant being found to be 100% liable following the liability only trial in this matter. 

Background

The Claimant was a pedestrian who had been involved in a collision with the Defendant's vehicle, a lorry that was turning left. The Claimant was a pedestrian crossing the road that the Defendant vehicle was turning into. The Claimant suffered life-changing injuries.

The Claimant had alleged that had a Fresnel lens been fitted to the nearside window of the Defendant's vehicle, the driver would have seen the Claimant and the collision would have been avoided. 

At trial, Marquand J held that the evidence submitted by the Claimant on this issue was unsatisfactory and concluded that the Claimant had failed to prove a breach of duty or establish a causal link in relation to this issue. 

The Claimant argued that the issue of the Fresnel lens had made a negligible impact on the quantum of the parties' costs and argued that the trial was not lengthened by the issue, as it would have run for 2 days in any event. The Claimant also alleged that the issue was raised at trial due to the accident reconstruction experts not having addressed the issue in their joint statement. It was also argued that the Defendant had failed to co-operate. The Defendant had taken the view that if the experts had chosen not to address the issue that was a matter for them. 

The Defendant made submissions that the issue was a distinct part of the allegations made against the Defendant. The allegations concerning the Fresnel lens had been pursued vigorously, and as such, the Defendant had had to prepare its Defence accordingly.  The Claimant had abandoned the issue at a very late stage and this had resulted in the trial being lengthened and led to the Defendant incurring additional costs as a result.  In addition, it was for the Claimant to prove her case and she had failed to do so, which was evident in her abandonment of the allegations surrounding the Fresnel lens.

On finding against the Claimant, Judge Marquand held that the majority of the evidence given on day two of trial related to the issue of the Fresnel lens. This was something the Defendant argued was of great importance given the industry wide ramifications of the allegation had it been found in favour of the Claimant.

The Decision

When the Court is considering whether to make an issue based costs order, the Court has discretion pursuant to CPR 44.2(5), which in particular deals with the conduct of the parties in the litigation. 

Marquand J considered the judgements in J Murphy & Sons Ltd v Johnson Precast Ltd and Fleming v Chief Constable of Sussex Police force [2004] EWCA Civ 643. In the case of Murphy, Mr Justice Coulson (as he was at the time) took the view that there must be a high threshold in order to obtain an issue-based costs order. This followed from the Fleming case where it was held that there must be a discrete issue pleaded which added sufficiently to the length of trial to necessitate displacing the rules that costs should follow the event. 

Marquand J noted that the mere fact that the successful party was not successful on every issue does not justify the making of an issue based costs order. However, he was of the view that the issue of the Fresnel lens was a discrete issue and agreed with the Defendant's submissions that this issue was a separate allegation as opposed to simply being part of the Defendant's vicarious liability for the driving of the Defendant's employee. The Judge reduced the Claimant's costs by 10% on the basis that the issue was pursued at trial. This was done on a broad-brush basis, rather than by a forensic analysis of the amount taken at trial to deal with the issue. 

Comment

This is a welcome decision especially where Defendant litigators are faced with various allegations in proceedings.  Where a particular issue is pursued unreasonably, the successful party can still face a sanction.  However that being said, a party should not assume an issue based costs order is a given. There needs to be a clear distinction between what additional work dealing with a discrete issue has taken relative to the substantive litigation.

Gurbir Thethy, the DWF Lawyer dealing with the matter, comments that the Defence were able to show to the Court that the Claimant's expert had misrepresented the official data relating to the fitting and use of Fresnel lenses to HGVs. Indeed, the Claimant had not even proffered in evidence the report upon which the Fresnel lens allegations were based. Counsel for the Defendant, Mr Simon Browne QC, first presented that to the Court.

Author: Sukhjit Dhadwal

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