HT-2021-000363 - [2025] EWHC 998 (TCC)

Claimant’s costs

The Claimant obtained substantial findings of fact and law in its favour against the First, Second and Sixth Defendants. The Claimant should be regarded as the successful party against each of those Defendants and is entitled to recover its costs against them.

The Claimant abandoned or failed to prove its case in respect of 11 out of 51 pleaded technical breaches. The fact that a party has not won on every issue is not, of itself, a reason for depriving that party of part of its costs. In civil litigation, especially complex litigation such as the present case, any winning party is likely to fail on one or more issues in the case, as observed by Coulson J (as he then was) in: Murphy & sons Ltd v Johnston Precast Ltd [2008] EWHC 3104 (TCC) at [10].

In this case, the Claimant won on every category of reverse engineering pleaded. It also succeeded on the key contract construction arguments, unlawful procurement of breach, unlawful means conspiracy, contract termination and limitation issues. In those circumstances, it would not be appropriate to make an issue-based costs order or a proportionate reduction in costs merely to reflect the fact that the Claimant was not successful on every last issue.

The Claimant seeks an order that the First, Second and Sixth Defendants should be jointly and severally liable for the costs of the proceedings. The Defendants submit that each of those Defendants should be liable for a proportion of the costs and that the Sixth Defendant should only be liable for the costs of the claim against him from the date of his joinder in November 2023.

The claims for breach of the ICA and procurement of such breaches against the First, Second and Sixth Defendants were intertwined and found to arise out of an unlawful means conspiracy. The Sixth Defendant adopted in his pleaded Defence the substantive defences raised by the other Defendants. They presented a common position on the key issues at trial, relying on the same factual and expert evidence. Therefore, a joint and several costs order against each of the First, Second and Sixth Defendants is appropriate.