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England and Wales High Court (Queen's Bench Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Shore v Sedgwick Financial Services Ltd & ors [2007] EWHC 3054 (QB) (20 December 2007) URL: http://www.bailii.org/ew/cases/EWHC/QB/2007/3054.html Cite as: [2007] EWHC 3054 (QB) |
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
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MR. CLIFFORD SHORE |
Claimant |
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- and - |
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(1) SEDGWICK FINANCIAL SERVICES LIMITED (2) BARCLAYS FINANCIAL PLANNING LIMITED (Trading as SEDGWICK INDEPENDENT FINANCIAL CONSULTANTS LIMITED) |
Defendants |
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MR. J. WARDELL QC and MR. T SEYMOUR (instructed by Messrs. Kirkpatrick & Lockhart Preston Ellis Gates Ellis) for the Defendant
Hearing date: 13 December 2007
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Crown Copyright ©
Mr. Justice Beatson:
"Indeed, but for the issue of limitation, the claimant would have succeeded in recovering damages of over £400,000. The limitation defences pleaded by the defendant (namely that the "primary claim" loss was suffered upon transfer in April 1997, and the "secondary claim" loss was suffered by the end of July 1997… ) were rejected by the court (para 204). It was not until the defendant's closing submissions in reply, at the very end of the trial, that the defendant raised the alternative argument that the loss was suffered as soon as the annuity rates fell, i.e. in 1997…"
"(a) The starting point for the exercise of the court's discretion is that costs follow the event (CPR 44.3(2) (Johnsey)). To work out who is the successful party, the court has to ask: 'Who, as a matter of substance and reality, has won?' (Roache; Painting)
(b) In a commercial case, it is important to identify which party is to pay money to the other (A L Barnes). Where there has been a payment into court, it is important to see whether or not that payment into court has been beaten (Johnsey).
(c) A defendant's failure to beat a payment into court will usually mean that he is treated by the court as the losing party, particularly if the case is not appropriate for an issue-based costs order (Johnsey; Firle; Jackson). However, such failure may not always be regarded as decisive (Bajwa).
(d) Depending on the facts, the court may treat a defendant who has failed to beat the payment into court as the successful party, or make no order as to costs; although it is not possible to list all the circumstances in which this may be appropriate, they might include the situation where the claimant has only just beaten the payment into court; where the payment into court reflected much more closely the amount eventually recovered, as compared to the amount claimed; where the claimant's conduct made it difficult or even impossible to make an effective payment in; and where the trial was largely devoted to the failure of the claimant's exaggerated case (Bajwa: Molloy; Islam; Painting).
(e) It may not always be possible for the court to say, when considering the action as a whole, that one party should be regarded as the overall winner (Roache). Indeed, even if it is still possible to identify one party as the successful party, it may still be appropriate, depending on the circumstances to make an issue-based costs order, so as to give effect to the substance of the result and to move away from too rigid an application of the 'follow the event principle' (A.E.I.; Summit; Fulham Leisure; Kotonou).
(f) In making an issue-based costs order, the court will generally endeavour to translate success/failure on particular issues into percentage terms (Summit; Fulham Leisure; Kotonou). In an exceptional case (namely, as compared to the general run of cases) such orders may result in an otherwise successful party paying the otherwise unsuccessful party's costs of a particular issue (as in Summit).
(g) Conduct must also be taken into account pursuant to CPR 44.3(4)(a) and (5). This will include questions of exaggeration, whether intentional or unintentional, and whether the parties demonstrated a willingness to negotiate and/or make offers and counter-offers (Painting)."