Key Facts
- •Asertis Ltd, a litigation funder, brought two claims against Dale Heathcote and Servico Contract Upholstery Ltd (Upholstery).
- •The first claim (rewards claim) was against Heathcote for sums paid under an employee benefit trust (EBT) scheme, totaling £520,000.
- •The second claim (payment claim) was against Heathcote and Upholstery for a £65,000 payment alleged to be a preference under the Insolvency Act 1986.
- •The judge found for Asertis on the payment claim (£65,000) but against Asertis on the rewards claim, except for a minor overpayment of £7,800 by Build Tec to Heathcote.
- •The judge ordered the defendants to pay 75% of the claimant's costs.
- •The appeal concerns whether the judge properly exercised his discretion in awarding costs, given the success on one claim and failure on the other.
Legal Principles
The court has wide discretion in awarding costs under CPR rule 44.2.
CPR rule 44.2
In assessing costs, the court may take a global approach, considering the overall success of each party.
Day v Day [2006] EWCA Civ 415; Flitcraft Ltd v Price [2024] EWCA Civ 136; Sirketi v Kupeli [2018] EWCA Civ 1264
A judge should not be criticised for failing to consider a factor not raised by the parties (Allen v Bloomsbury Publishing Ltd [2011] EWCA Civ 943; Samsung Electronics Co Ltd v LG Display Co Ltd [2022] EWCA Civ 423; Secretary of State for Transport v Cuciurean [2022] EWCA Civ 661).
Allen v Bloomsbury Publishing Ltd [2011] EWCA Civ 943; Samsung Electronics Co Ltd v LG Display Co Ltd [2022] EWCA Civ 423; Secretary of State for Transport v Cuciurean [2022] EWCA Civ 661
Outcomes
The appeal was dismissed.
The court found that the judge had not erred in principle. Both parties had invited the judge to consider the costs globally, and he did so within his wide discretion. The court did not consider whether it would have reached the same decision, or if the judge could have treated the claims separately.