Case No. IP-2016-000050

40.There was a dispute as to whether separate caps apply to the costs of a Part 20 claim or whether they fall within the caps of the main proceedings. If the latter, there was the further question of how awards should be apportioned where the totals of the two sets of costs exceed the caps. The arguments 41.Mr Weisselberg began with rule 45.31 which sets out the basic rule on the overall costs cap in the IPEC: “(1) Subject to rule 45.32, the court will not order a party to pay total costs of more than – (a) £50,000 on the final determination of a claim in relation to liability; and (b)£25,000 on an inquiry as to damages or account of profits.” 42.He submitted that two words were of significance here: ‘party’ and ‘claim’. Vis-à-vis the Part 20 Defendants, Ms Kogan was a claimant. She had brought what constituted a ‘claim’ against the Part 20 Defendants by filing what, after all, is called a ‘Claim Form (Additional claims – CPR Part 20)’, issued on 10 June 2016. If the action started by the Claimants had settled, the Part 20 claim, which had a life of its own, would have continued independently. 43.Mr Weisselberg acknowledged that a claim and counterclaim are to be treated as a single claim for the purpose of rule 45.31, with a single costs cap, see Liversidge v Owen Mumford Limited [2012] EWPCC Civ 40; [2013] F.S.R. 38 at [13]-[15] and Global Flood Defence Systems Ltd v Johann Van Den Noort Beheer BV [2016] EWHC 189 (IPEC); [2016] 1 Costs L.R. 137 at [7]-[15]. He argued that there were good reasons for treating a Part 20 claim differently. A counterclaim does not limit a claimant’s entitlement to recover up to £50,000 if he wins. A Part 20 claim, not within the claimant’s control, would have that effect if there is a single costs cap. The defendant, on the other hand, has a free choice whether to start a Part 20 claim or not. 44.Mr Hill adopted what Mr Weisselberg had said and I think, by implication, submitted that a party joined as a Part 20 defendant should not have the prospect of receiving less than £50,000 in costs if he were to successfully defend the claim. Mr Hill added that whereas Table A in CPR 45PD Section IV makes it plain that a claim and counterclaim are subject to a single overall cap, the same is not true of a Part 20 claim. 45.Mr Malynicz relied on what HH Judge Birss QC said in Liversidge at [13]-[15]. He also said that the Part 20 Defendants should have asked for a stay of their argument on estoppel at the CMC. It has proved to have been unnecessary and the costs of it have been wasted. Discussion 46.Neither Judge Birss in Liversidge nor I in Global Flood had the present issue in mind. But as appears from those judgments, however one construes a ‘claim’ in rule 45.31 and thus the scope of the overall costs cap, it is invariably possible to identify disadvantages that might be visited on one party or another. 47.I agree with Mr Weisselberg that if there is a single cap a claimant could find himself out of pocket when he wins an action solely because the defendant chose to join Part 20 defendants who eat into the costs cap. The Part 20 defendants could be similarly disadvantaged. Equally, though, an impecunious defendant may have no rational choice but to make a Part 20 claim. It might be asked why such a defendant should become vulnerable to a doubling of the stage caps and the overall cap. Also, while it is correct to say that a Part 20 claim has a potential life of its own, so does a counterclaim. 48.I do not accept that the Part 20 Defendants in this action should have sought to stay their argument on acquiescence and estoppel at the CMC. As it has turned out there was no need to run the point, but this court discourages any real possibility of multiple trials on liability where one will do. 49.Taking all the foregoing into account, I have come to the view that a Part 20 claim gives rise to a separate overall costs cap and within it separate stage caps. I say that for two reasons. First, it is difficult to characterise a Part 20 claim, with its own claim form, as anything other than a separate claim. To give ‘claim’ a different interpretation in rule 45.31 would require severe stretching of its usual meaning. Secondly, while it would be possible to fit Part 20 pleadings into a consolidated Table A, they would not neatly accord with the stages of the substantive claim identified in the Table. I doubt that the framers of that Table thought about Part 20 claims when it was drafted. Alternatively, it was just assumed that Part 20 claims would have separate and equivalent stage caps. 50.A Part 20 claim will have a separate overall cap and separate stage caps which will accord with their equivalents in Table A (subject to the effect of a successful Part 36 offer by the Part 20 claimant). 51.I will say one thing further. I think that there is an obligation, stronger even than the usual one in this court, for a defendant to a Part 20 claim to take all reasonable steps to ensure that costs are minimised. There will often be an overlap with issues arising in the main claim and ample opportunity to avoid unnecessary duplication in costs. One question likely to arise is whether it is necessary to have separate counsel or even a separate legal team. If there is little or no likelihood of a conflict arising between the claimant and the Part 20 defendant, it may well be appropriate for counsel appearing for the claimant, and possibly the claimant’s legal team as a whole, to represent the Part 20 defendant once pleadings are concluded if not sooner. I accept that the risk of an unexpected conflict can never be entirely ruled out, but the consequences of that exceptional outcome are likely to be worth the savings made in the general run.