Costs

Authority established that in commercial litigation, the party which ended up receiving payment would generally be characterised as the overall winner of the entire action. The starting point was the general rule was that the successful party was entitled to an order for costs. The judge had to then consider whether to depart from the starting point, having regard to all the circumstances of the case.

If the circumstances of the case required an issue-based costs order, the judge should do so, although he should be cautious in doing so because of the practical difficulties which that caused, and because of the steer given by CPR Pt 44.3(7). In many cases, the judge could reflect the relative success of the parties on different issues by making a proportionate costs order.

The judge should also have regard to any Pt 36 offers and each party’s approach to negotiations. In almost every case, even the winner was likely to fail on some issues,