ABSTRACT
The principles are these. (i) Costs are in the discretion of the court. (ii) They should follow the event, except when it appears to the court that in the circumstances of the case some other order should be made. (iii) The general rule does not cease to apply simply because the successful party raises issues or make allegations on which he fails, but where that has caused a significant increase in the length or cost of the proceedings he may be deprived of the whole or a part of his costs. (iv) Where the successful party raises issues or makes allegations improperly or unreasonably, the court may not only deprive him of his costs but may order him to pay the whole or a part of the unsuccessful party’s costs. [p 1214]
I draw attention to the new Rules because, while they make clear that the general rule remains, that the successful party will normally be entitled to costs, they at the same time indicate the wide range of considerations which will result in the court making different orders as to costs. From 26 April 1999 the ‘follow the event principle’ will still play a significant role, but it will be a
starting point from which a court can readily depart. This is also the position prior to the new rules coming into force. The most significant change of emphasis of the new rules is to require courts to be more ready to make separate orders which reflect the outcome of different issues. In doing this the new Rules are reflecting a change of practice which has already started. It is now clear that too robust an application of the ‘follow the event principle’ encourages litigants to increase the costs of litigation, since it discourages litigants from being selective as to the points they take. If you recover all your costs as long as you win, you are encouraged to leave no stone unturned in your effort to do so. [p 1522H]
Looking at the CPR as a whole, it is apparent that the overriding concern of the court must be to make the order which justice requires; that an order in favour of the successful party is generally to be adopted as calculated to achieve this end; but the court in any particular case may make a different order if on the facts of that case justice so requires; and the court should have regard to the success of the parties on parts only of their cases. The straight jacket imposed on the Court by the decision of the Court of Appeal in Re Elgindata Ltd (No 2) [1992] 1 WLR 1207, relaxed to a degree in cases of group litigation by the decision of Mrs Justice Smith in Ochwat v Watson Burton (18 February 1998), is gone, and the search for justice is untrammelled by constraints beyond those laid down by the new code itself. I may add that for the purposes of the CPR success is not in my view a technical term but a result in real life, and the question as to who succeeded is a matter for the exercise of common sense.
