Case Law Update - Trevor Michael Fox v Foundation Piling Limited  EWCA Civ 790
1st October, 2011
This was a personal injury case in which the Defendant sought to appeal an order that they should pay a substantial amount towards the Claimant’s costs. The original claim for damages was in the sum of £280,0000, and an offer was made by the Defendant of £23,550.70 which was rejected. A following offer of £31,702.53 was accepted.
The issue of costs went to court with the Defendant taking the position that unnecessary costs were incurred due to the Claimant exaggerating his claim by so much.
The Court considered that although the Claimant had exaggerated his claim his conduct was not such as to justify a departure from the rule that a successful party should be awarded his costs.
“In my view, there is no justification for departing from the usual starting point as set out in rule 44.3 (2) (a), namely that the unsuccessful party should pay the successful party’s costs. The judge exercised his discretion on the wrong basis, namely the assumption that the defendant was the successful party. It therefore falls to this court to re-exercise that discretion.”
The judge closed with the following:
“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 to the Court of Appeal about costs, of which this case is an example.”