HT-2020-000448 - [2024] EWHC 2025 (TCC)

Fecha: 01-Ago-2024

Costs

Introduction

93.

The parties have, unsurprisingly, starkly contrasting views as to the appropriate order as to costs in this case. The following, somewhat stark, facts are relevant to the points both sides seek to make:

(1)

The ultimate order is for payment by DBS to TCS in the sum of ‘£3,682,024.4040 (as corrected);

(2)

TCS’s pleaded claim was for c.£124m, and it was awarded just over £8m (before set off). This was made up of just over £1m in respect its c.£110m delay losses claim; and just under £7m in respect of its c.£14m VBSC claim;

(3)

DBS’s pleaded counterclaim for delay and defects related losses was for around £120m, and it was awarded around £4.6m. Other than the sum of just over £8,000 in relation to one defect, the amount awarded was always accepted as a ‘credit’ against TCS’s claims relating to a period prior to that under consideration in the litigation. The limited issue in relation to this sum related to whether it could be characterised as a debt for the purposes of whether 1998 Act interest ran, which DBS lost;

(4)

The litigation started life as TCS’s Part 8 Claim relating to the VBSC issue alone. This was met with a denial of the right to payment and a counterclaim that DBS had overpaid in respect of VBSC, coupled with DBS’s enormous counterclaim for delay (liquidated and unliquidated damages) and defects. DBS’s position was that the VBSC issue should form part of the same overall claim. TCS did not object. The claim became a Part 7 Claim, and in TCS’s Amended Particulars of Claim, it introduced its own enormous delay and partial termination claim for relief from liquidated damages and loss and expense;

(5)

If considered in isolation, the VBSC claim probably would have accounted for less than (and possibly significantly less than) 5% of the costs incurred on both sides. It took up, at most, around a day of the 28 day hearing. It was an entirely discrete issue, unrelated to the broader dispute arising out of delay, partial termination and defects. It was plainly the single determining issue upon which the outcome in terms of overall net-payor/payee turned. Ignoring the issue, TCS failed to recover more than the credit it accepted it owed DBS.

(6)

No relevant offers were made.

94.

Mr Cogley contends that the starting point is that, as net recipient of money overall, TCS is the winner and that it should, in the normal way, receive its costs. DBS could have made an offer to protect its position and it did not. The Court should not depart from this by adopting an issue based or proportional approach. It is also argued that, if a broad issues-based approach is adopted, it should recover costs relating to DBS’s counterclaim on an indemnity basis in light of what it says was DBS’s unreasonable conduct in advancing and persisting in a hopeless case, which crossed the threshold of being out of the norm.

95.

Mr Croall contends that the correct outcome is no order as to costs. This is on the basis that the outcome that TCS is the net recipient is driven solely by the VBSC claim, but for which it would be the receiving party in the sum of over £3m. He argues that R1 B&B was the single biggest issue in terms of evidence and trial time, and TCS lost this completely; that the limited success in respect of R1-D did not overtop the sums owed to DBS in relation to preceding delays; and that TCS’s experts’ approach to delay was entirely rejected and the cause of significant wasted costs. It is accepted that DBS lost its counterclaims. Overall, no order as to costs, it is said, does justice between the parties. Alternatively, any costs awarded should be of a very small proportion.