"When success is the only issue" [2017] EWHC 460 (TCC)

Oldcorn v Southern Water [2017] EWHC 460 (TCC)

Costs

Having previously dismissed this subrogated claim for damages for negligence  [2017] EWHC 62 (TCC) following a 6 day trial in the TCC, last week HHJ McKenna awarded the successful Defendant its costs in full after a separate hearing at which the Claimants were again represented by leading counsel.

Rejecting the Claimants’ argument that he should make a lesser (percentage) order to reflect the fact that they had succeeded in establishing duty and breach and had lost only on the issue of causation the Judge found that there was no reason for departing from the “General Rule” under CPR 44.2(2)(a) that the unsuccessful party should pay the successful party’s costs. Distinguishing the judgment of Coulson J in Harlequin Property (SVG) Ltd and Another v Wilkins Kennedy (A firm) [2016] EWHC 3233 (TCC) the Court held that as the only claim was one of negligence questions of duty and breach could not really be said to be distinct for the purposes of CPR 44.2(4) because they were integral components of the tort of negligence.  As it had been reasonable for the Defendant to take the points that it did on these components there was no reason to deprive it of any of its costs having regard to the comments made by Jackson L.J in Fox v Foundation Piling Ltd [2011] EWCA Civ 790 about the "… growing and unwelcome tendency by first- instance courts … to depart form the starting point set out in CPR r.44.3 (2)(a) too far and too often.”

In the light of the judgment the Claimants agreed to make a payment on account of costs of £300,000 within 14 days.

Clifford Darton and Paul Powlesland represented the successful Defendant at trial and in relation to costs; they were instructed by Mr. Dean Orgill and Mr. Michael Mulcare of Mayo Wynne Baxter and by Mr. Robin Churchill, Miss Katherine Leppard and Mrs Kelly Young of Southern Water.”