Claire Pennells & Masood Ahmed examine the application of CPR 44.2 in cases of group litigation
When making a judicial determination on the allocation of litigation costs, two decisions fall to the deciding judge under Civil Procedure Rule (CPR) 44.2: establishing which of the litigating parties is the “winner”, and applying judicial discretion to determine any discounts or changes to awarded costs necessary to reflect elements of the case. These tasks are made exponentially more difficult in group litigations, where both the defendants and the claimants may have grounds for considering themselves the “winner” for the purposes of cost allocation. For those parties in the group litigation who succeed in their individual claims, the logical conclusion is that they have “won” their case and, by extension, payment of their costs should be covered by the “losing” defendant; but in the event that the winning parties ultimately make up a minority of the larger claimant group, it could be argued that, as a whole, the claimants are the “losing” party, responsible for the defendant’s costs. In the
