COSTS

CPR 44.3(4) requires the judge to consider whether a party has succeeded on part of his case even though not wholly successful. This allows the judge to take into account on costs, the fact that the losing party won on one or more issues in the case. It does not mean that the judge can cut down the costs of the successful party merely because he has not done quite as well as he had hoped.

What amounts to partial success will be a matter of fact and degree. The focus should be on the partial success of the losing party on an issue with costs consequences. The mere fact that the defendant has succeeded in keeping the damages down below the sum claimed by the claimant will not necessarily make him the victor or even a partial victor.

Where the main issue in the case was whether or not the claimant had grossly exaggerated the claim (which may amount to “conduct” under CPR 44.3(4)(a)), it is open to the judge to hold that the defendant was the victor, but for a defendant to regard himself as a winner or even partial winner on an issue of exaggeration, the exaggeration must be an important feature of the claim with costs consequences (Lady Justice Smith, paras 72–73).