CA-2025-001079 & CA-2025-002078 - [2025] EWCA Civ 1262

The judge dealt with the consequences of his judgment by way of a written judgment dated 14 August 2023. For those purposes he had been provided with written skeleton arguments from both sides. In his skeleton argument, Mr Boch had argued that Mr Robertson should not have to pay all the costs that had been incurred, because some, perhaps a significant amount, of those costs had been incurred in dealing with Google’s unsuccessful territorial jurisdiction argument, to the effect that the Equality Act claims were not caught by r.6.33(2B), and therefore permission should have been sought to serve out of the jurisdiction in respect of those matters in any event.

Mr Boch complains that the judge did not address that argument in his short judgment and therefore did not give proper reasons for why he rejected it. Mr Boch repeated his primary submission that there was no causative link between the application for relief from sanctions, and Google’s Equality Act argument. Therefore, he said, the general rule that a party who applies for relief from sanctions should pay the costs (see for example Swivel UK Ltd v Tecnolumen GmbH [2022] EWHC 825 (Ch)) did not apply in the present case.

Mr Boch acknowledged the height of the threshold he needed to cross in order to challenge a costs order. That is a classic example of the exercise of judicial discretion and this court will rarely interfere with it. The most cited passage in support of that proposition can be found at [2] of the judgment of Wilson J (as he then was) in SCT Finance v Bolton [2002] EWCA Civ 56; [2003] 3 All ER 434, where he said:

“[2] This is an appeal brought with leave of the single Lord Justice from the county court in relation to costs. As such, it is overcast, from start to finish, by the heavy burden faced by any appellant in establishing that the judge’s decision falls outside the discretion in relation to costs conferred upon him under CPR 44.3(1). For reasons of general policy, namely that it is undesirable for further costs to be incurred in arguing about costs, this court discourages such appeals by interpreting such discretion very widely.”

In that exceptional case, the court found that the judge had imposed an arbitrary limit on the amount of costs recoverable by the defendants which was unprincipled.

There are two reasons why I would dismiss Mr Robertson’s cross-appeal. First, if my Lords agree with my reasoning in allowing Google’s appeal, then these proceedings are a nullity because of the invalid service. In those circumstances, Mr Robertson was always liable to pay the costs of these failed proceedings. But if I am wrong about that, then I consider that, careful though they were, Mr Boch’s submissions do not go over the high hurdle identified in SCT.

As to the complaint about the judge’s reasoning, although he puts it in short form at paragraph [4] of his written judgment, it is plain that the judge was well aware of how and why Mr Boch was saying that, on these facts, the general costs rule should not apply, certainly not to the costs of the territorial jurisdictional challenge.

Furthermore, I consider that Google were entitled to raise the territorial jurisdictional point before the judge because, if Mr Boch had been right and what mattered was the relief from sanctions regime, then the overall merits in such a case can matter very much. If Google could have shown that some of these claims were outside the jurisdiction in any event, then so much the better for them. The points were open to them to take and, even though they failed, they only arose at all because of Mr Robertson’s failure to effect valid service. The judge was therefore entitled to make the order that he did.

I should say that, if I had been the judge, I may have made a 20% reduction in Google’s costs to reflect their failure on the territorial jurisdiction issue. But that is not the test. What matters is whether the judge’s decision on costs was open to him. Here, I think it was. It certainly was not unprincipled, particularly in circumstances where the judge went on to make extensive reductions to the actual costs claimed by Google. That was all part of his wide-ranging discretion, with which this court should not interfere. I would therefore reject the cross-appeal.