Court of Appeal
Published February 1, 2008
Hall and Others v Stone
Before Lord Justice Waller, Lady Justice Smith and Lord Justice Lloyd
Judgment December 18, 2008
The fact that a successful claimant had not been awarded the whole amount of damages he sought did not mean that the defendant had partially succeeded and the judge could not reduce the claimant’s costs.
The Court of Appeal so held by a majority, Lord Justice Waller dissenting, when, inter alia, allowing the appeal of Mrs Jill Hall, Ms Bryony Hall and Miss Caroline Lynas, claimants in personal injury proceedings against Mrs Kim Stone, against the decision by Judge Marston in Aldershot and Farnham District Registry on March 27, 2007 to award them damages and order that the defendant pay 60 per cent of their costs. The claimants sought 100 per cent of their costs.
Mr Benjamin Williams for the claimants; Mr Paul Higgins for the defendant.
LADY JUSTICE SMITH said that rule 44.3(2) of the Civil Procedure Rules required the judge to consider who was the unsuccessful party. The judge clearly thought that the claimants had won to a substantial extent but that they had not succeeded altogether because they had not recovered as much as they had contended for.
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Rule 44.3(4) required the judge to consider whether a party had succeeded on part of his case even though not wholly successful. That provision was designed to allow the judge to take into account on costs the fact that the losing party actually won on one, or more than one, issue in the case. It did not mean that the judge could cut down the costs of the successful party merely because he had not done as well as he hoped.
What amounted to partial success would be a matter of fact and degree and would be case-sensitive. The focus should be on the partial success of the losing party on an issue which had costs consequences.
The mere fact that the defendant had succeeded in keeping the damages below the sum sought by the claimants would not necessarily make him the victor or even a partial victor.
The judge erred in principle and the order should be set aside. The defendant was to pay all costs save those relating to medical reports on which the claimants did not rely.
Lord Justice Lloyd agreed. Lord Justice Waller dissented.
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Solicitors: Clarke Partnership, Stockport; Horwich Farrelly, Manchester.