Kerry Underwood


leave a comment »

In Marcura Equities FZE and another v Nisomar Ventures Ltd and another [2018] EWHC 523 (QB)

the High Court set out the approach to be taken on costs where a matter has settled save as to costs.

Here, the parties had settled the substantive issues in a claim relating to disclosure and use of confidential information.

The judge held that the defendants should pay the whole of the claimants’ costs, subject to assessment, as the claimants were the successful party and the general rule is that the loser pays costs, and there were no features of the settlement offers made, nor of the conduct of the claimants, justifying some other order under CPR 44.2.

The judge noted the authorities on costs after settlement before trial save as to costs, including

BCT Software Solutions Ltd v C Brewer & Sons Ltd [2003] EWCA Civ 939.

There the Court of Appeal had cautioned judges not to make costs orders where they were not in a position to decide who had been the successful party after settlement, but recognised that there may be cases where it was clear which party had been successful.

The judge agreed and said that it was hard to see why a claimant who was accorded all the relief he sought by consent should not recover his costs.

The claim form had sought £200,000 and, relying on

Medway Primary Care Trust v Sebastian Marcus [2011] EWCA Civ 750

the defendants submitted that the settlement sum of £35,000 was so modest that it could not justify awarding the claimants’ costs  of £450,000 as sought.

However, the judge distinguished Medway, observing that a personal injury case, where the only relief sought is damages, is very different from a confidential information case where there are often a series of motivations, and a corresponding range of claims.

In a confidential information case, where monetary claims are only a part, and sometimes the least important relief sought, it will rarely, if ever, be right to focus only on the payment of money when determining a costs order

Further, if the trial in this action had gone ahead and the claimants had been awarded damages to be assessed, it could not have been said that they should not have their costs because the assessed damages might be modest.

The judgment also contains useful guidance on the law in relation to negotiations on a Without Prejudice basis, and negotiations Without Prejudice Save As To Costs.



Written by kerryunderwood

April 30, 2018 at 8:34 am

Posted in Uncategorized

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: