Winner does not take all

In the New Law Journal of 15 March, Jonathan Ross performed a useful service by providing a selection of recent cases where the court or Court of Appeal had decided on how costs should be apportioned between the parties. There are some interesting percentages ranging from 92.5% to 50% demonstrating that a party is likely to be penalised if it pursues unsuccessful issues even though it was not unreasonable to do so and it was successful overall. Mr Ross commented: ‘No longer can any draftsman, seek to plead all possible claims or defences in the belief that his client will be protected if it only succeeds on one or a majority of these issues. Not only has great care to be taken to ensure that there is merit in any issue that is being pursued, but clients need to be aware that they may not only fail to recover their costs in relation to an issue unsuccessfully pursued, but they could be liable for the other side’s costs in relation to that issue. Similarly, clients have to be careful about rejecting offers and failing to negotiate, as the court can take such conduct into account when deciding on costs.’