Action settled save as to costs - judge making costs order at parties' request without them disclosing compromised issues to him - complaint on order so made unsustainable

BCT Software Solutions Ltd v C Brewer & Sons Ltd: CA (Lords Justice Brooke, Mummery and Chadwick): 11 July 2003

The claimant brought an action seeking substantial damages for infringement of copyright and injunction.

A month before the trial, the claimant's pleadings were amended, narrowing down the issues.

Shortly after the commencement of the trial, the claimant agreed to accept 10,000 in full settlement of its substantial claim, save as to costs, which the parties requested the trial judge to determine based on the minute of compromise.

The judge ordered the claimant to pay 85% of pre-amendment and 62.5% of the post-amendment costs of the proceedings on the basis that the claimant was unsuccessful in three of the four issues, and the amount recovered was only 10,000 instead of a much larger sum originally claimed.

The costs incurred were estimated at 300,000 on each side.

The claimant appealed against the order in relation to post-amendment costs.

Peter Susman QC and Guy Tritton (instructed by Nabarro Nathanson) for the claimant; Henry Carr QC and Richard Meade (instructed by Bird & Bird) for the defendant.

Held, dismissing the appeal, that in every case, the first question for the court was whether it was in a position to make an order about costs under the Civil Procedure Rules 1998 (CPR), rule 44.3 (2), in the absence of agreed or adjudicated facts on which to decide the question; that in litigation in which all other issues had been compromised without a full trial, a judge should be cautious before making an order for costs, and could even decline an invitation to exercise his discretion under section 51(1) of the Supreme Court Act 1981; that where the parties had invited the judge to exercise his discretion, it was not open to complain that the judge set out to do what both parties had invited him to do.