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You are here: BAILII >> Databases >> England and Wales High Court (King's Bench Division) Decisions >> Moradi v The Home Office (Costs) [2022] EWHC 3125 (KB) (05 December 2022) URL: http://www.bailii.org/ew/cases/EWHC/KB/2022/3125.html Cite as: [2022] Costs LR 1857, [2022] EWHC 3125 (KB) |
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KING'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
(Sitting as a Judge of the High Court)
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DOROTHY MORADI |
Claimant |
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- and – |
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THE HOME OFFICE |
Defendant |
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Crown Copyright ©
The Litigation
The Principles
"(1) Subject to paragraphs (2) and (4)….where a Part 36 offer is accepted within the relevant period the claimant will be entitled to the costs of the proceedings… up to the date on which notice of acceptance was served on the offeror.
(3) Except where recoverable costs are fixed by these Rules, costs under paras (1) and (2) are…assessed on the standard basis if the amount of costs is not agreed.
(4) Where— (a) a Part 36 offer which was made less than 21 days before the start of a trial is accepted; or (b) a Part 36 offer which relates to the whole of the claim is accepted after expiry of the relevant period; or (c)...a Part 36 offer which does not relate to the whole of the claim is accepted at any time, the liability for costs must be determined by the court unless the parties have agreed the costs.
(5) Where paragraph (4)(b) applies but the parties cannot agree the liability for costs, the court must, unless it considers it unjust to do so, order that— (a) the claimant be awarded costs up to the date on which the relevant period expired; and (b) the offeree do pay the offeror's costs for the period from the date of expiry of the relevant period to the date of acceptance.
(6) In considering whether it would be unjust to make the orders specified in paragraph (5), the court must take into account all the circumstances of the case including the matters listed in rule 36.17(5)."
"(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 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 will have regard to all the circumstances, including (a) the conduct of all the parties; (b) whether a party has succeeded on part of its case, even if that party has not been wholly successful, and (c) any admissible offer to settle made by a party which is drawn to the court's attention, and which is not an offer to which costs consequences under Part 36 apply.
(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 its case or a particular allegation or issue, and (d) whether a claimant who has succeeded in the claim, in whole or in part, exaggerated its claim.
(6) The orders which the court may make under this rule include an order that a party must pay (a) a proportion of another party's costs; (b) a stated amount in respect of another party's costs; (c) costs from or until a certain date only; (d) costs incurred before proceedings have begun; (e) costs relating to particular steps taken in the proceedings; (f) costs relating only to a distinct part of the proceedings, and (g) interest on costs from or until a certain date, including a date before judgment…."
"62. There has been a growing and unwelcome tendency by first instance courts and, dare I say it, this court as well to depart from the starting point set out in rule 44.3(2)(a) too far and too often. Such an approach may strive for perfect justice in the individual case, but at huge additional cost to the parties and at huge costs to other litigants because of the uncertainty which such an approach generates. This unwelcome trend now manifests itself in a (a) numerous first instance hearings in which the only issue is costs and (b) a swarm of appeals …. 46. A not uncommon scenario is that both parties turn out to have been over-optimistic in their Part 36 offers. The claimant recovers more than the defendant has previously offered to pay, but less than the claimant has previously offered to accept. In such a case the claimant should normally be regarded as "the successful party" within rule 44.3(2). The claimant has been forced to bring proceedings in order to recover the sum awarded. He has done so and his claim has been vindicated to that extent.
47. In that situation the starting point is the successful party should recover its costs from the other side: CPR 44.3(2)(a). The next stage is to consider whether any adjustment should be made to reflect issues on which the successful party has lost or other circumstances. An adjustment may be required to reflect the costs referable to a discrete issue which the successful party has lost. An adjustment may also be required to compensate the unsuccessful party for costs it was caused to incur by reason of unreasonable conduct [by] the successful party.
48. In a personal injury action the fact the claimant has won on some issues and lost on others is not normally a reason for depriving the[m] of part of his costs…
49. Nevertheless in other cases (as stated above) the fact that the successful party has failed on certain issues may constitute a good reason for modifying the costs order in his favour. This is commonly achieved by awarding the successful party a specified proportion of its costs. In Widlake v BAA [2009] EWCA Civ 1256, the facts were so extreme the successful party was ordered to bear all its own costs."
"The question whether a party has acted unreasonably in refusing ADR must be determined having regard to all the circumstances of the particular case. We accept the submission of the Law Society that factors which may be relevant to the question whether a party has unreasonably refused ADR will include (but are not limited to) the following: (a) the nature of the dispute; (b) the merits of the case; (c) the extent to which other settlement methods have been attempted; (d) whether the costs of the ADR would be disproportionately high; (e) whether any delay in setting up and attending the ADR would have been prejudicial; and (f) whether the ADR had a reasonable prospect of success. We consider these in turn. We wish to emphasise that in many cases no single factor will be decisive, and that these factors should not be regarded as an exhaustive check-list…. [As to (c)]…[t]he fact that settlement offers have already been made, but rejected, is a relevant factor. It may show that one party is making efforts to settle, and that the other party has unrealistic views of the merits of the case. But it is also right to point out that mediation often succeeds where previous attempts to settle have failed. Although the fact that settlement offers have already been made is potentially relevant to the question whether a refusal to mediate is unreasonable, on analysis it is in truth no more than an aspect of (f)."
My Conclusions
"An adjustment may also be required to compensate the unsuccessful party for costs it was caused to incur by reason of unreasonable conduct [by] the successful party."
The issue is whether the Claimant was guilty of any 'conduct' justifying 'adjustment'.
"First, on the basis that the proper allocation of costs attributable to the Defendant, as opposed to the MOJ, is a matter for detailed assessment (as found at paragraphs 24 and 29 of the judgment)…. 2021. Secondly, on the basis that it is a matter for a Costs Judge on detailed assessment, the Defendant no longer asks this Court to disallow the Claimant's 1% and 2% costs of the costs management process."
However, the Defendant submitted that the appropriate percentage costs order was 50% not 66%. Predictably, the Claimant argued the reduction should be none at all as her litigation conduct was reasonable and that the Defendant raised a new point at the last minute prompting settlement, or any reduction should be only 10% as 33% would amount to a penalty aggravated by the operation of the statutory charge.
HHJ Tindal
5th December 2022