Lawtel document(s) – 15/07/2009 08:50

PARKES v MARTIN (2009)

CA (Civ Div) (Smith LJ, Rimer LJ) 9/7/2009
COSTS
APPORTIONMENT : COSTS : COSTS ORDERS : DISCRETION : CONSIDERATION OF NOTIONAL CROSS-CLAIM : EXERCISE OF DISCRETION : Pt 36 CIVIL PROCEDURE RULES 1998 : r.44.3(4) CIVIL PROCEDURE RULES 1998

On the facts, the judge had been entitled to apportion costs in line with the claimant’s liability in a road traffic accident as he had had proper regard not only to the claimant’s claim but the defendant’s notional cross-claim, and so the exercise of his discretion could not be criticised.

The appellant driver (P) appealed against a costs order made at the conclusion of a trial on liability arising out of a road traffic accident with the respondent lorry driver (M). Following the accident, both parties had intended to issue personal injury claims, however, P did so first. The parties formally agreed that the issue of liability would be determinative of P’s claim and of M’s intended claim, without the need for M to issue separate proceedings or a counterclaim. P made two CPR Part 36 offers, one for 75 per cent in his favour and the other for a 50:50 split, but M refused both.

Liability was tried as a preliminary issue and the judge determined that P should recover 35 per cent of the value of his claim and that M should recover 65 per cent of the value of his claim. Prior to the judge making a determination on costs, counsel for M conceded that a counterclaim had not been made, but made reference to “a claim by the wayside”. Consequently, the judge in exercising his discretion under CPR r.44.3(4) determined that P should recover 35 per cent of his costs in line with the ruling on liability, as justice was best served by doing so. P submitted that it was not open to the judge to consider M’s notional cross-claim as there was no real evidence of it before him save for M’s fleeting reference to having “a claim by the wayside”, and that, as liability had been established in P’s favour, albeit in a reduced fashion, he was entitled to all of his costs.

HELD: Although there was no explicit reference in the judge’s determination to M’s cross-claim when making the costs order, it was clear from his decision to apportion costs in the same proportion as liability that he had had it in mind. M had made it sufficiently clear to the judge that, although he did not have a formal counterclaim, he did have “a claim by the wayside”, thus making the issue of liability relevant to the cross-claim.

Further, P had had ample opportunity to make submissions on costs and had understood the argument advanced by M in relation to the notional cross-claim but failed to make submissions to the contrary. The judge had correctly exercised his discretion and it was clear that he had had proper regard to the claim and notional cross-claim when making the order for costs.

Appeal dismissed
Counsel:
For the appellant: Judith Ayling
For the respondent: Stephen Friday

Solicitors:
For the appellant: New Law LLP
For the respondent: DWF (Leeds)
LTL 9/7/2009 EXTEMPORE (Unreported elsewhere)
Document No.: AC9601243

Analysis – Steven Friday

For more please read the Parks v Martin Analysis

For more please read the PLP News: Parks v Martin