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Abbott v Long, Court of Appeal, 20 May 2011

8 August 2011
The issues

Costs – credit hire – conduct – exaggerated claim

The facts

Mr Abbott was driving his car when he collided at a junction with a car driven by Mr Long. When the matter came to Trial, the Judge gave Judgment for Mr Abbott but reduced the damages by 75% on account of contributory negligence. Mr Abbott had a claim for credit hire which amounted to £48,000. In the course of the Trial, Mr Abbott accepted that he would have been able to finance a substitute vehicle so the Judge reduced the claim for recovery of the hire charges to 6 months. £8,600 was awarded in respect of credit hire damages and in effect, the damages sought by Mr Long were reduced by one-sixth. The Judge made no Order as to costs.

The claim had been driven by the credit hire company. The Judge found that the claim had been grossly exaggerated. The Judge’s first view was that Mr Long should pay 50% of the Defendant’s costs, but accepting that Mr Long had been the winner, in that he had recovered damages and following Parkes v Martin CAP noting that it was wrong to simply award the percentage of costs equivalent to the percentage of the total claim for damages which had succeeded, and finally noting that there had been no offer by the Defendant, decided that the correct Order should be no Order for costs.

The Claimant Appealed.

The decision

The starting point was CPR 44.3. Sub Rule 1 gave the Court a discretion as to whether costs were payable by one party to another and as to the amount and as to when they were to be paid. Sub Rule 2 stated that if the Court made an Order for costs, the general rule would be that the unsuccessful party should pay the costs of the successful party, although the Court might make a different Order. Sub Rule 4 provided that in making an Order as to costs, the Court had to have regard to all the circumstances, including:-

a) the conduct of the parties;
b) whether a party had succeeded on part of his case, even if he had not been wholly successful; and
c) any payments into Court or admissible offers made.

Sub Rule 5 defined the conduct of the parties as including:

a) conduct before as well as during the proceedings;
b) whether it was reasonable for a party to raise, pursue or contest a particular allegation;
c) the manner in which a party had pursued or defended its case; and
d) whether a Claimant who had succeeded in his claim, had exaggerated it.

This was an Appeal on costs and there was a heavy burden placed on the party that Appealed against a costs Order to establish that the Judge’s decision fell outside his wide discretion.

The Judge had taken the view that the hire company ought to have had systems in place to ensure that claims which were only properly capable of succeeding were pursued. That was not the same as dishonesty, but it was still blameworthy conduct. The Judge’s criticisms amounted to a finding of blameworthy conduct in relation to the conduct of the litigation. The Judge had taken a basket of factors into account in making her decision. She had accepted that there had been no offer, which was a point in the Appellant’s favour in that there had to be a Trial. It was open to the Judge to reduce the costs on account of the inflated claim of credit hire car charges and, as to the way the matter was conducted, without proper regard to Mr Abbott’s duty to mitigate his loss or keep his expenses to an appropriate level for someone spending his own money rather than someone else’s.

The Judgment was carefully reasoned and the Judge was entitled to take into account the conduct which she had described and of which she had disapproved. The Order was not disproportionate.

Appeal dismissed.

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