Costs

The general rule was that the unsuccessful party would be ordered to pay the costs of the successful party under CPR 44.3(2)(a). Often it would be appropriate for the loser to pay the winner’s costs, even where there had been issues on which the overall winner had lost. In commercial litigation, the starting point in working out who the winner would be for the purposes of making costs orders would usually be to look at what money had been ordered to be paid.

Parties needed to be afforded a reasonable degree of latitude in formulating claims, including pleading an alternate basis for the same claim. Similarly, where costs had been incurred on issues which were common to a claim which had succeeded and to a claim which had failed, it would often be appropriate simply to make a costs order in favour of the winning party which covered those common issues.