Nassif v Augusta Offshore SPA & Ors, Court of Appeal - Supreme Court Cost Office, June 17, 2009, [2009] EWHC 90143 (Costs)

Resolution Date:June 17, 2009
Issuing Organization:Supreme Court Cost Office
Actores:Nassif v Augusta Offshore SPA & Ors
 
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1Neutral Citation Number: [2009] EWHC 90143 (Costs)Claim No. 5BO 03815SCCO Reference CCD 0804153 IN THE HIGH COURT OF JUSTICESUPREME COURT COSTS OFFICESupreme Court Costs OfficeClifford's InnLondonEC4A 1DQDate: 17 June 2009Before :Deputy Master Victoria Williams- - - - - - - - - - - - - - - - - - - - -Between :- - - - - - - - - - - - - - - - - - - - -Mr Jamie Carpenter (counsel instructed by Hereward and Foster, Solicitors) for the ClaimantMr James Arney (counsel instructed by Thomas Cooper, Solicitors) for the First Defendant The other defendants did not attend and were not representedHearing date : 20 April 2009 Handed down 17 June 2009- - - - - - - - - - - - - - - - - - - - -JUDGMENT1. This judgment concerns the issue whether an order to the effect that that the First Defendant should pay the Claimant's costs of the claim ought to be treated as including Claimant's costs incurred in the course of pursuing claims against the Second and Third Defendants against whom he had discontinued, a year or more before the eventual final costs order made by consent. The case accordingly concerns in part the meaning of CPR 38.6, and also the construction of the eventual settlement order upon contractual terms. In strict terms the single remaining preliminary issue is `issue (d)' between the parties set out in my order of 22 October 2008. That order recorded four issues but the first three have been dealt with by concession and/or agreement. Accordingly the issue is ``Whether the terms of the costs order include those [ie, the costs] of the Second and Third Defendants'', in circumstances where the claims against the second and third defendants were discontinued during the course of the claim. Within the ostensible scope of that issue, the Claimant has conceded that he cannot recover the costs which he had to pay to the Second and Third Defendants as a result of the discontinuance but the remaining question is whether he can nonetheless recover from the First Defendant his own costs of pursuing those two other defendants.2. The parties have I understand agreed that if I am against the Claimant on this issue then the Claimant will not be entitled to recover his costs to the extent to which they exclusively relate to the claims against the Second and Third Defendants, that unitary indivisible items (the example of a medical report was given) would in principle be allowable in full subject to the usual criteria of reasonableness and proportionality, and single but divisible items would be allowable save to the extent to which they relate only to the claims against the Second and Third Defendants. On the other hand if I am against the First Defendant on this issue the agreed approach is that costs would be allowed in principle irrespective of whether (or the extent to which) they relate to the second or third defendants, but subject to scope for argument in any given instance as to whether it was reasonable or proportionate to incur any given item against any given defendant.3. This personal injury claim arose out of an accident on 15 May 2001 aboard a ship (the Asso Ventidue) where the Claimant worked as Chief Officer. A claim was issued against the three defendants naming them all jointly and severally, on the basis that it was unclear which of them were liable. The First Defendant was sued as an apparent owner of the ship as reported by the shipping agency, the Second Defendant was understood to be the Claimant's employer and the Third Defendant was also understood to be an owner of the ship (as reported by the claimant himself). I will henceforth refer to the parties as C, D1, D2, and D3 in this judgment.4. On 29 April 2005 proceedings were discontinued against D3 after it was ascertained that D3 was an agent. On 16 July 2006 the claim was discontinued against D2. No orders were sought or made under CPR 38.6(1) at the time to alter the normal effect of that rule (what is its normal effect is something considered in this judgment).5. Thereafter the matter was settled in May 2007 on the basis of a consent order dated 22 May 2007 with a clause relating to the Claimant's costs which has given rise to this dispute: ``The First Defendants do pay the Claimant's costs of the claim on the standard basis such costs to be subject to detailed assessment if not agreed.'' The order also included a stay of ``this claim'' on terms, in the paragraph preceding the costs provision. The order was headed to refer to C and D1 but did not set out the names of D2 and D3 in the title.6. The preliminary issue to which the parties have been unable to agree an answer is whether the costs order of May 2007 enables C to recover from D1 his own costs of the claims which he brought against D2 and D3 prior to the discontinuance of those claims. The parties (that is C and D1) were represented by counsel whose submissions were most helpful.Defendant's arguments7. Mr Arney for D1 argued that a consent order is to be construed as with any other contract. There was no dispute between the parties that such was the case. I was referred in passing by both parties to Newall v Lewis [2008] EWHC 910 to the effect that a consent order for costs was to be construed as any other contract and, as one would expect, the leading case of Investors Compensation Scheme v West Bromwich BC [1998] 1 WLR 896 at 912 was referred to more fully (also by both sides) for each of the points made there as to the process for the ascertainment of meaning of a contract. Mr Arney stressed that the task for the court was to construe this costs order and not to consider costs orders which might have been made but which were not made. This was as he put it a case for determining what the ``ICS reasonable person'' would have understood by the order, leaving out of account declarations of intent and the contents of negotiations.8. He referred to various matters of background or factual context said to be relevant to the interpretation of this consent order. The first was that the claims against D2 and D3 had been discontinued long before the consent order was entered into. In other words...

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