HT-2023-000006 - [2024] EWHC 2914 (TCC)

In this period the allocation of responsibility for costs is governed by CPR Part 44.2 which I have set out above.

As always under CPR Part 44.2, the first question is, is there a successful and an unsuccessful party? If so, the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party.

In the event, my judgment awarded A & V a significant sum of money. No offer was made by J&BH which came even close to being an appropriate amount when all the relevant circumstances were taken into account as I did in judgments Nos 5 to 7.

The process of getting to that conclusion was complicated by J&BH’s inappropriate deployment of jurisdictional objections to the Blizzard adjudication, its inappropriate commencement of Part 8 proceedings, its persuasion of Eyre J to reach an erroneous conclusion which had to be put right by the Court of Appeal, and its presentation to Mr Smith in that adjudication of what I have held to be a case ill-founded in fact and law.

Because of all these decisions and actions on the part of J&BH, its decisions as to offers to make or offers to reject were understandable at the time made. However, the fundamental fact is that J&BH never made an offer in this period which reflected A & V’s true entitlements.

It is correct that A & V put forward what I have found to be a large and ill-founded claim for damages. The appropriate way for J&BH to deal with that was to make an appropriate offer which reflected the true value of the other claims which A & V was putting forward. J&BH did not do so.

By contrast, A & V made offers which, although rather too high, were not far short of the amount which I found due to them.

In my view, the appropriate conclusion in respect of this period is that A & V was the successful party and that, in consequence, a costs order in its favour is appropriate.

The issue then to be considered is whether I should make some reduction from the amount otherwise payable by J&BH to reflect the only major issue on which it won: that is the very large claim for £645,100.45 for J&BH breaches.

Whilst J&BH won this issue with a minor exception in that all but about £6,000 of the claim was dismissed, the claims depended upon a central factual and legal issue which was at the heart of this case, and upon which J&BH’s counterclaims depended, namely whether J&BH was in repudiatory breach of contract. On that issue I found firmly against J&BH.

In my judgment, relatively little by way of costs was incurred by J&BH in this period in respect of the damages claim put forward by A & V. This changed in later periods.

Taking all the above matters into consideration, I hold that A & V is entitled to an order that J&BH pays its costs in respect of the period to 4 December 2023. That order does not displace the order already made that J&BH is entitled to its costs thrown away as a result of repleading of the case by A & V (paragraph 5 of the Order dated 23 October 2023).