Barkhuysen v Hamilton, Court of Appeal - Queen's Bench Division, December 23, 2016, [2016] EWHC 3371 (QB)

Issuing Organization:Queen's Bench Division
Actores:Barkhuysen v Hamilton
Resolution Date:December 23, 2016

Case No: A90TR403

Neutral Citation Number: [2016] EWHC 3371 (QB)




Sitting at the Royal Courts of Justice

Date: 23/12/2016

Before :


- - - - - - - - - - - - - - - - - - - - -

Between :

- - - - - - - - - - - - - - - - - - - - -

- - - - - - - - - - - - -- - - - - - - -

Alexandra Marzec (instructed by Stephens Scown) for the Claimant

John Samson (instructed by Public Access) for the Defendant

Hearing date: 16 December 2016

- - - - - - - - - - - - - - - - - - - - -

JUDGMENTRuling on Costs

Mr Justice Warby:

  1. I tried this case in Exeter in October 2016. I handed down judgment on 10 November 2016: [2016] EWHC 2858 (QB). I held that the defendant was liable to the claimant for damages for false imprisonment, slander and harassment. A claim for malicious prosecution and a claim for damages for three alleged slanders were unsuccessful. I dismissed the counterclaim, and entered judgment for the claimant for damages of £32,080.

  2. At a hearing in Bristol on 16 December 2016 I dealt with matters consequential on those decisions. I granted injunctions to restrain the repetition of the same or similar wrongs. It is not necessary to set out or explain those injunctions. I also reached conclusions as to the appropriate order for costs, and as to the application of CPR 36.17. This ruling identifies the orders made, and the reasons for them.

  3. The orders are as follows. The defendant must pay 90% of the claimant's costs. Those costs are to be subject to detailed assessment on the indemnity basis, save for the costs of this adjourned hearing which are to be assessed on the standard basis. I express the opinion that there is good reason, upon conducting the detailed assessment, to depart from the budget in five particular respects. The claimant has ``beaten'' at least one Part 36 offer that he made, to settle the claim. Therefore, pursuant to CPR 36.17 the defendant must pay an additional amount of £3,280, and interest on damages and costs. Interest is claimed from the date of judgment only. I order that interest to run at the rate of 10%. I order an interim payment of £150,000 on account. I impose a stay of execution such that the date for payment of these sums is, in the first instance, 16 January 2017. The defendant has permission to apply before that time for a further stay.

  4. Allocation. The general rule is that the unsuccessful party should pay the costs of the successful party. There can be no doubt in this case which of the parties was the successful one. I resolved virtually every factual issue in favour of the claimant. The malicious prosecution claim, and some of the claims in slander, failed on legal grounds.

  5. The court does not reduce the costs recoverable by a successful claimant merely because he or she failed in some minor respects. If however there are some substantial issues on which the claimant failed or the defendant succeeded the court may make a different order, to reflect that degree of success. It is not common, and generally undesirable, to make an order for the recovery of the costs of a particular issue. That is impracticable in most cases, and would be in this one. If an issue-based order is to be made the best way to achieve that often is to award the claimant a proportion or percentage of his or her costs. I reached the conclusion that this was the right course to take here. My approach was to make a reduction that fairly reflected (a) the costs incurred by the claimant on issues on which he failed and (b) the costs incurred by the defendant on those issues, which would in principle be set off.

  6. I reduced the costs to take account of the claimant's failure on the issues I have identified, and to take account of the fact that to some extent the defendant struck some successful and significant blows in cross-examination as to credit. I made a...

To continue reading