KA-2024-BRS-000027 - [2025] EWHC 2919 (KB)

The Judge’s decision on the costs of the trial are set out in a separate judgment given on 19^th August 2024 following a half day hearing. It is a complex and detailed judgment, dealing with, among other things, a wide range of conduct issues on both sides.

Saxby has permission to appeal on the ground that the Judge was wrong to make the costs order he did. Ms Baker seeks permission to appeal on a similar ground, but of course to different effect. I received submissions from both parties, before and at the appeal hearing.

The position I have otherwise reached on the present appeal is to dismiss the appeals and applications other than those going to the exercise of the Judge’s remedial powers conferred by section 140B of the Act. I have allowed that appeal and will set aside the Judge’s remedies decision. I did not receive the sort of submissions (or, possibly, evidence) at the appeal hearing which would enable me simply to substitute my own assessment of remedy for unfairness, and Mr Loxton at any rate had realistically accepted that was a foreseeable outcome in the circumstances.

I shall of course give the parties an opportunity to reflect on the provisions of the order I will in due course make to give effect to this judgment, but in the circumstances it appears inevitable that the question of a remedy for the unfairness found by the Judge will need to be remitted to the County Court for a fresh determination if not agreed. The approach the judge considering that matter decides to take to the exercise of their statutory discretion, including for example the extent to which they factor in conduct issues in making any financial determination affecting the debtor/creditor relationship between the parties, has an evident potential to interact with the sorts of considerations which may or must inform the exercise of discretion under CPR Part 44 at the costs stage. The final decision on remedy also has a potential to affect such matters as the overall assessment of who may be regarded as a successful or partially successful party. Costs decisions should be capable of taking account of the outcome of litigation, and its conduct, in the round – and must also be careful, in circumstances where conduct is potentially relevant to liability for and quantum assessment of a money award, not to double count.

In these circumstances, taking a pragmatic approach and applying the overriding objective, in my judgment the fair and proportionate way to deal with the appeal and application regarding the costs judgment is to set aside the costs order, not on the basis of reaching a conclusion on the challenges on their own merits but as necessarily consequential to my decision on remedy.

In reaching that conclusion, I bear in mind that this is hard-fought litigation, but that the parties were after all agreed in principle that the remedial money award and the costs decision should not stand, albeit for different reasons and with different objectives in mind.