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England and Wales Court of Appeal (Civil Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Groupama Insurance Company Ltd. v Overseas Partners Re Ltd & Anor [2003] EWCA Civ 1846 (17 December 2003) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2003/1846.html Cite as: [2003] EWCA Civ 1846 |
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Morison J
Strand, London, WC2A 2LL |
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B e f o r e :
(President of the Family Division)
LORD JUSTICE BROOKE
(Vice-President of the Court of Appeal, Civil Division)
and
LORD JUSTICE LATHAM
____________________
GROUPAMA INSURANCE COMPANY LIMITED |
Claimants |
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and OVERSEAS PARTNERS RE LIMITED |
First Defendants/ Respondents |
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and AON LIMITED |
Second Defendants/ Appellants |
____________________
Andrew Fletcher (instructed by Davies Arnold Cooper) for the Respondents
Hearing date : 19th November 2003
____________________
Crown Copyright ©
Lord Justice Brooke :
"This is to confirm our increased participation 50%-75% on the LDG marine personal accident program … subject to satisfactory warranties as to no losses incurred on the program to date."
"LDG have noted contents of 18/6 fax – can confirm no losses advised to LDG to date that would affect any of the declarations ceded."
(i) Awarded Groupama its costs of the action, including its costs of the claim against Aon, to be paid by OP Re;
(ii) Rejected Aon's application for an order (a "Bullock" order) that Groupama should pay Aon's costs and recover them from OP Re;
(iii) Rejected the contentions made by Groupama and OP Re that some separate order should be made in relation to the issue as to whether Aon was authorised to alter the fax, on the basis that the amount of time and energy spent on this issue was so small that a separate order could not be justified;
(iv) Ordered Aon to bear its own costs of the action.
"In my view, Aon should bear their own costs. It was their fault that there was a case at all, and they cannot complain about being joined as a party …
Therefore the outcome is that OP must bear Groupama's costs of the action including Groupama's costs of joining Aon into the action; but that Aon should bear its own costs. In this way. OP will be saddled with one set of costs only and that reflects the justice of the case."
"44.3(1) The court has discretion as to –
(a) whether costs are payable by one party to another;
(b) the amount of those costs; and
(c) when they are to be paid.
(2) If the court decides to make an order about costs –
(a) the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party; but
(b) the court may make a different order.
…
(4) In deciding what order (if any) to make about costs, the court must have regard to all the circumstances, including –
(a) the conduct of all the parties;
(b) whether a party has succeeded on part of his case, even if he has not been wholly successful; and
(c) any payment into court or admissible offer to settle made by a party which is drawn to the court's attention (whether or not made in accordance with Part 36).
(5) The conduct of the parties includes –
(a) conduct before, as well as during, the proceedings, and in particular the extent to which the parties followed any relevant pre-action protocol;
(b) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;
(c) the manner in which a party has pursued or defended his case or a particular allegation or issue; and
(d) whether a claimant who has succeeded in his claim in whole or in part, exaggerated his claim."
"The concept of 'intricate connection with the transaction' is much too vague to afford any guidance to judges who take a party's conduct into account for the purposes of disallowing costs. The relevant conduct must be conduct in the proceedings themselves. Conduct in the transaction, even misconduct in the transaction, is not enough on its own. Likewise, absence of documentation may have made it reasonable for the finance company to contest the proceedings, but it was not conducive to the proceedings. What made the proceedings happen was the finance company's overall assessment of the probability that Mrs Hall would prove good faith. They miscalculated on that, since the judge held that she was in good faith. It is altogether different from the conduct of Ramsey Urban District Council in the Bostock case in unnecessarily insisting that Mr Bostock be prosecuted.
The position of the finance company in the present case is similar to that of an insurer putting its insured to proof of a loss by an insured peril. The insurer may have considerable evidence of dishonesty on the part of the insured. It may be the possession of that evidence that persuades the insurer to fight a claim. But if the insured can prove his loss, despite his dishonesty on other matters, it would not usually be a correct exercise of discretion for a judge to deprive the insured of his costs.
So here, in spite of the fact that costs are always a matter for the judge's discretion and in spite of the fact that this court will almost always defer to the judge's decision on costs made in the exercise of that discretion, that discretion must be exercised on proper principles. It is not, in my view, proper to disallow a successful party her costs simply because of anterior dishonest conduct which, while it may have been a part of the transaction which gives rise to the proceedings, cannot be characterised as misconduct in relation to the proceedings themselves."
"Costs are in the discretion of the trial judge, and this court will only interfere with the exercise of that discretion on well-defined principles. As I said in Roache v News Group Newspapers Ltd [1998] EMLR 161, 172:
'Before the court can interfere it must be shown that the judge has either erred in principle in his approach, or has left out of account, or taken into account, some feature that he should, or should not, have considered, or that his decision is wholly wrong because the court is forced to the conclusion that he had not balanced the various factors in the scale'."
Lord Justice Latham:
The President: