Scenario Training: CIVIL PROCEDURE Scenario Mr White is being sued by Mr Green for breach of contract. Mr White made a Part 36 offer of £15,000 to settle out of court but that was immediately rejected by Mr Green who was claiming for £25,000. Eventually the court decided to award Mr Green £11,000 for breach of contract but refused to grant him any costs because they felt his conduct during the trial was underhanded. He had continuously put down Mr White during his testimony and had relied on information retrieved by hacking into Mr White’s computer and voicemail. Mr Green now wants to appeal this decision so that he can claim his legal costs. Is Mr Green’s appeal likely to succeed?
Working through using Westlaw UK What is the principle in this case? We need to find out to what extent a judge can use their discretion when awarding costs. Can a party’s conduct during proceedings be taken into account? Because we’re talking about the process of litigation we’ll start with the White Book. Browse into Books, and click on the White Book. We’ll start by searching the Index for the term “conduct”.
You will get a large number of results but can quickly refine them by using the options on the right-hand side of the screen. We are only interested in conduct relating to appeals, and costs, so tick to select Appeals, Conduct, and Costs. Both Conduct, Costs and Costs, conduct of parties point to the same place in the White book so click to access 44.3.9-44.3.13.2. We can also see these paragraphs cover ‘discretion’ as well so would seem a good place to start. Read through paras 44.3.9, 13 and 13.2. You can use the “back to top” link and scroll down to view a contents page for the rule. It would seem that judges do have a fair amount of discretion when it comes to awarding costs and can take into account: (a) the conduct of the parties during the litigation, and (b) any Part 36 Offers made We now have a clearer view of the process and have plenty of cases to follow up with but we should also read the Practice Direction on Costs. Use the link on the left-hand side to access the Practice Direction.
The important section here is 44PD.2 which states that: 8.4 In deciding what order to make about costs the court is required to have regard to all the circumstances including any payment into court or admissible offer to settle made by a party which is drawn to the court’s attention, and which is not an offer to which costs consequences under Part 36 apply. It is always worth reading relevant Practice Direction to each Rule as these can provide a lot more detail of processes and procedures. Now go back to the White Book (the easiest way is to use the recent button). You can see that there is a link to “further analysis” with rule 44.3(5) so select this link to access the legislation. It is always useful to check the actual legislation (SI 1998/3132) to check that the provision is fully in force and that there are no pending amendments. We also need to check that there are no exceptions. This would appear to be the exact provision we need in our case, and so we should check the Modifications and Related Legislation to ensure that there are no exceptions in our case. All of them are related to Family proceedings so aren’t relevant in our case. Now we need to find some cases to back up our findings. If you check the lists of cases and journal articles citing this provision you can see there are a lot so instead of going through this list, we’ll build a search. Go into cases and open the advanced search. We’ll search for: Subject = conduct costs, and Legislation Cited = civil procedure rules, rule 44.3 We should get 81 results which is slightly too many to look through. If you browse into the first couple, they aren’t really relevant to our facts so we’ll refine our results. From your results list, we’ll Search Within Results for the phrase “no order for costs”. This should narrow your results to 7. Look through the abstract of each case to see if any are relevant.
It would seem the first case is very relevant and on point. You should also read the Case Cited by Walsh v Singh (Costs) and then case which has subsequently cited it just to ensure that they do not add to or restrict the point of law. You should also read through the full text to fully understand how the principle of the law was discussed within the case. In particular the transcript includes following useful statements: “12 The judge considered it [his behaviour] would be quite unjust if that was not reflected in some way in his order on costs.” “24 It is well-established that, in deciding what order as to costs to make, a trial judge has a generous ambit of discretion and this court does not interfere simply because it would itself have made some other order. It has to be shown that the judge's order was in effect perverse or that he misdirected himself. In exercising his discretion as to costs, he is obliged to take into account all the circumstances of the case. If the judge takes into account matters which he ought to have left out of account, and leaves out of account matters which he ought to have taken into account, this court should interfere with his decision. It should also do so if satisfied that the decision was so perverse that the judge must have fallen into error. Subject to that, this court must respect the judge's exercise of the discretion which has been entrusted to him. The court must resist the temptation to substitute its own view for that of the judge.” “25…there are occasions when it may be appropriate for the court to mark its disapproval of a party's conduct by making a particular order as to costs, relevantly for the purpose of this case by disallowing costs, even if the conduct was not causative of any or any significant waste of costs. I would, however, accept that any such disallowance must be proportionate to the conduct in question.” Now you have found a relevant case, it may be worth setting up a Case Alert to track your case so that you will immediately be notified if another case cites it, it gets appealed, or if a journal discusses it. Before you finish it is worth just running quick searches in Current Awareness and News to check that nothing related to your area of law has happened in the last few days. You can run a search for “civil procedure” & costs /s conduct.
Principle of Law The Civil Procedure Rules enable a judge to use their discretion in awarding costs (rule 44.3) They may take into account Part 36 offers and the conduct of the parties during the litigation process. The case of Walsh v Singh indicates that underhand conduct such as spyware on computers and belittling in court can amount to ‘inappropriate conduct’. Appeals against “no costs orders” are only likely to succeed if the original judge’s order was “perverse or he misdirected himself”. Remember When dealing with matters of litigation procedure, the best place to start is generally the White Book. Use the status icons, terms in context and the case digests to quickly scan materials to see if they are relevant or not. Read relevant Practice Directions and the cited/citing material – you may find cases which are even more pertinent to your facts. If the list of cited/citing materials is too long to go through, use a search to pinpoint relevant results instead. Check details of any pending amendments – you should be aware of what the law will be, as well as what it is now. Check the most current material (in News & Current Awareness) as something may have happened today or yesterday which could affect your case. Once you have found relevant materials you intend to use, set up alerts to ensure that if anything does happen, you’ll get emailed straight away.