Partakis-Stevens & Anor v Sihan & Ors
[2023] EWHC 1051 (TCC)
Following a judgment on a claim brought in nuisance by the Stevens, the parties were not able to agree what consequential costs order was appropriate. The parties were able to agree the rate of interest on the judgment sum and costs, 3% p,a, However, whilst the Sihans accepted that the Stevens were the successful party and that the starting point was that they should pay the Stevens’ costs, a number of arguments were put forward to suggest that the court should depart from this starting point.
Firstly, the Stevens failed on parts of their case. In particular, there were two unsuccessful attempts at pursuit of claims for an injunction and there was the largely unsuccessful pursuit of the claim for consequential damages, including the very substantial claim for residual diminution in value and for damage to the swimming pool. HHJ Davies noted that:
“It cannot be disputed that there was a substantial difference between the value and significance of these claims as advanced and the end result. It cannot sensibly be disputed that if the claim had been pleaded from the outset on the basis of the eventual outcome: (a) the parties ought – acting sensibly – to have approached the claim in a far more constructive way and, probably, resolved it without the need for a trial; and (b) the court would have been far more ready to cut down the directions and the allowable budgeted costs to a level commensurate with the real value and significance of the case.”
That said, the actual time and cost of these unsuccessful claims was relatively limited compared to the time and cost of investigation of all of the issues in the case, including the significant issues which were vigorously contested and on which the Stevens succeeded, namely breach and causation: “The victory was far from pyrrhic in that the Stevens have achieved a judgment of real benefit to them.”
However, the Judge commented that the Stevens' determined pursuit of these claims had something of the nature of a “crusade” with some items only being accepted during cross examination. Further, this had to be balanced against: “a similar dogged and unreasonable defence by the Sihans”. Further, their liability expert was: “at least as, if not more, dogged than the Stevens” and the valuation expert did not engage in any meaningful way with the key issues.
However, some reduction from the costs otherwise recoverable by the Stevens would be required by reference to their lack of success on all issues and the extent to which their conduct of their case was unreasonable. However, a number of without prejudice save as to costs ("WPSC") offers (not Part 36 offers) had also been made. However, this WPSC correspondence about settlement showed that the parties attempted, in good faith, to achieve a settlement but were unable, for a number of different reasons, to do so.
The result was that the Stevens received 75% of their costs against the Sihans, reflecting a reasonable discount for their relative lack of success and unreasonable conduct.
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