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As a general rule (cf r44.3 CPR) it is accepted that where a party wins / succeeds in a claim pre-litigation or post-issue they are entitled to their reasonable and proportionate costs.

However, it was reaffirmed in the recent case of Costain Ltd v Charles Haswell & Partners Ltd [2009] in the QBD by Richard Fernyhough QC (sitting as Deputy High Court Judge), that the above principle does not always apply where the party had succeeded only on some issues. The Court is encouraged to consider the relative success or failure of the parties and to adjust its costs order in favour of the winner of the litigation accordingly.

Thus in this case, where it was considered that almost 65% of the Courts time was taken up on points which ultimately failed, the Claimant was awarded some 38.75% of its total estimated costs (McGlinn v Waltham Contractors Limited and Others [2007] EWHC 698 and Multiplex Construction (UK) Limited v Cleveland Bridge UK Limited [2008] EWHC 2280, followed).

In addition the Defendant was entitled to raise and the Court entitled to take into account the Claimants conduct and the effect of the same on recovery of costs.

These recent judgements emphasise the importance of ensuring that Claimant and/or their legal advisors when particularising their claim should always bear in mind that:

a) Exaggeration of the claim;

b) Raising and pursuing claims when unreasonable to do so; and

c) Failing to make or consider reasonable offers to settle;

All have the potential to affect your claim when recovering costs. One must always bear in mind the duty of the parties under r 1.3 of the CPR to further the Overriding objective by assisting the Court to ensure cases are dealt with swiftly, justly and proportionately.

If you would like to discuss any of the above Article or any claim you may have for personal injury or litigation in general please contact us on our Freephone number 0800 389 9136 where one of our team will be more than happy to assist you.  specialist litigation solicitors – offices in London and Bolton


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