KB-2021-000741 - [2025] EWHC 2257 (KB)

The Represented Claimants did not succeed in each of their allegations. That does not mean that they were not overall the successful party. In Sharp v Blank [2020] EWHC 1870 at para. 7, Sir Alastair Norris said the following:

“(a)

It is a commonplace that a successful party will not succeed on every aspect of its case. But notwithstanding that very frequent occurrence in litigation, the general rule still applies. Costs are determined by reference to overall success.

(b)

Although no authority is needed to support that observation, the point was pithily summarised by Gloster J. in HPL Kidson's v Lloyds Underwriters [2008] 3 Costs LR 427 at [11].

(c)

A degree of caution is needed against a too-ready departure from the general rule for the reasons explained by Jackson LJ in Fox v Foundation Piling [2011] EWCA 790 at [62].”

It is said that the evidence was imprecise. This was a legitimate criticism, but it does not justify a departure from the “general rule that the unsuccessful party will be ordered to pay the costs of the successful party.”

JBL refers to arguments on which the Represented Claimants did not succeed, and submits that there should be a reduction from the costs to be awarded to the Represented Claimants to reflect that partial lack of success. In my judgment, those arguments on which the Represented Claimants did not succeed do not justify a reduction. Whilst the Represented Claimants succeeded on implied terms in fact rather than implied terms in law, it was an important or useful part of the analysis to consider implied terms at law. In the judgment at para 294, there is quoted Chitty on Contracts about the ambiguity that sometimes exists between implied terms in fact and in law. Whilst in this case implied terms were found in fact and not in law, this shows how closely connected the different formulations were. In essence, the Represented Claimants succeeded in establishing the implied terms.

The Represented Claimants did not succeed on the tax allegations. However, the very unusual approach of Mr Benson to cash in the business led the Court to conclude that whilst the allegation was not made out, “if there has been misunderstanding, it has been contributed to by the emphasis on and prominence of cash in the culture of JBL and in the words and conduct of Mr Benson.”: see Judgment at para. 456. The fact that this allegation of breach of contract was not established does not on the facts of this case justify a reduction.

There are criticisms made of two aspects of disclosure, namely the non-disclosure of the existence of a WhatsApp group formed by the Claimants and the late production of a print out over WhatsApp exchange between Suzanne Summers and Linda Sharpe. I do not find that there was anything deliberate about this or that they had an appreciable effect on the litigation such as to warrant a reduction.

The Court is also mindful of the dicta in Sharp v Blank above and finds that they have a particular resonance in connection with the issue of whether there should be a reduction in this case. JBL seeks cumulatively a 20% reduction, but in the circumstances there will be no reduction.