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England and Wales High Court (Technology and Construction Court) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Technology and Construction Court) Decisions >> Nigel Witham Ltd v Smith & Anor (No. 2) [2008] EWHC 12 (TCC) (04 January 2008) URL: http://www.bailii.org/ew/cases/EWHC/TCC/2008/12.html Cite as: [2008] EWHC 12 (TCC), 117 Con LR 117, [2008] TCLR 3, [2008] CILL 2557 |
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QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
133-137 Fetter Lane London, EC4A 1HD |
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B e f o r e :
____________________
NIGEL WITHAM LTD |
Claimant |
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- and - |
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(1) MR ROBERT LESLEY SMITH (2) MISS JACQUELINE ISAACS |
Defendants |
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No. 2 |
____________________
Ms Annabel Shaw (instructed by Fenwick Elliott) for the Defendants
Hearing date: 19 December 2007
____________________
Crown Copyright ©
His Honour Judge Peter Coulson QC:
1. Introduction
2. Principles
"(6) The orders which the court may make under this rule include an order that a party must pay –
(a) a proportion of another party's costs;
(b) a stated amount in respect of another party's costs;
(c) costs from or until a certain date only;
(d) costs incurred before proceedings have begun;
(e) costs relating to particular steps taken in the proceedings;
(f) costs relating only to a distinct part of the proceedings; and
(g) interest on costs from or until a certain date, including a date before judgment.
(7) Where the court would otherwise consider making an order under paragraph (6)(f), it must instead, if practicable, make an order under paragraph (6)(a) or (c).
(8) Where the court has ordered a party to pay costs, it may order an amount to be paid on account before the costs are assessed."
"…the judge may make different orders for costs in relation to discrete issues - and, in particular, should consider doing so where a party has been successful on one issue but unsuccessful on another issue and, in that event, may make an order for costs against the party who has been generally successful in the litigation …"
"How, in circumstances like that, does one decide who the unsuccessful party is? This was, after all, a form of commercial litigation where each side was claiming money from the other. Costs following the event is the general rule and in this kind of litigation the event is determined by establishing who writes the cheque at the end of the case. Here the defendants do. They were the unsuccessful parties and my starting point is that the claimant is entitled to the costs of the proceedings, claim and counterclaim taken together."
3. Who Was The Successful Party?
4. The Counterclaim In Respect Of The Claimant's Costs Estimates
5. The Defendants' Recoverable Costs
Solicitors costs | £73,762.50 |
Counsel's fees | £16,425 |
Expert's fees | £33,246.35 |
Total | £123,433.85 |
Minor amounts relate to costs orders already made and assessed, and the costs of the judicial settlement conference which are not recoverable, but the schedule gives a clear picture of the sort of level of costs that the Defendants have incurred.
6. The Factors Said To Be Relevant To A Percentage Reduction
(a) The Costs Estimates Point
(b) Two Experts
(c) Variations
(d) Conduct/Failure To Mediate
(e) Conduct/Offers
(f) Conclusion
7. The Part 36 Offer
8. Interim Payment Of Costs