Re Elgindata Ltd Has Gone

Bank of Credit and Commerce International SA (In Liquidation) v Ali and Others (NO 4) (Ch D NLJ 19 November)

Looking at the Civil Procedure Rules as a whole, it is apparent that the overriding concern of the court has to be to make the order which justice requires; that an order in favour of the successful party is generally to be adopted as calculated to achieve that end; that the court in any particular case might make a different order if on the facts of that case justice so required; and the court should have regard to the success of the parties on parts only of their cases. The straitjacket imposed on the court by the decision of the Court of Appeal in Re Elgindata Ltd (No 2) [1993] 1 All ER 232 has gone, and the search for justice is untrammelled by constraints beyond those laid down by the new code itself. For the purposes of the CPR success was not a technical term but a result in real life, and the question as to who succeeded was a matter for the exercise of common sense. Before the CPR a party who established a breach of contract but could prove no loss would have been held to have lost and almost as of course would be subject to an adverse order for costs. In the case of group actions, such an order might have been modified to a limited degree to reflect that party’s success on generic issues. But that approach no longer held sway. A judge could and should take a realistic view of the outcome of litigation in deciding who, in the particular context of the test action, had been successful. It was not possible or just to have regard only to the lack of success of the test case employees in establishing their personal loss. That failure was only one half of the picture. The full picture was that whilst the bank had successfully warded off all claims by the test case employees, the judgment opened the door to possible successful claims by other employees, and beyond that (for the benefit of all concerned and in fulfilment of the essential purpose behind the action), had cleared the way for a more expedited resolution of such claims. Accordingly the proper course was to make no order as to costs.