The wrong way round

A L Barnes Ltd v Time Talk (UK) (CA TLR 9 April)

In deciding that he would make no order in respect of the parties’ costs associated with instructing expert witnesses, the judge had fallen into an error of principle that vitiated the exercise of his discretion. Had he asked himself at the outset who was the successful party, before segregating the effective costs of proving the claim, he would have had to answer that it was the claimant who had recovered more than the defendant and who was thus the successful party. The circumstances of the case showed that if the judge had not segregated a large element of the costs out of the picture before deciding who was the successful party and therefore entitled to an order for costs, he would not have made an order that the claimant should pay 50% of the general costs of the defendant, but he would have reflected the claimant’s success in an order for its recovery of 25% of its costs.