There were two issues before Mrs Justice Whipple: who was the successful party and should the successful party’s costs be discounted or reduced in some way to reflect their conduct? In terms of who won, the Judge adopted the approach of looking at who had to write the cheque at the end of the case. Here, it was the defendants (“Atlasjet”) who had to pay money to the claimants. So the starting point for the Judge’s decision on costs was that Atlasjet should pay the costs. However, the claimants had lost a number of issues. The Judge then turned to conduct. Atlasjet had resisted all early attempts at discussion or negotiation in this case. The Judge said that this was a case “crying out for some sensible attempt at negotiation before costs racked up and the parties’ attitudes hardened”.
However, Atlasjet did not answer the claimants’ pre-action protocol letter, giving the claimants no option but to serve proceedings. The claimants sent a Calderbank offer, which turned out to be too high, but was at least “some attempt at settlement”. Atlasjet refused the offer and made no counter-offer. The Judge said that even if the case could not be settled, an early meeting would “surely have focussed the minds of those involved, and is likely to have led at least to some narrowing of issues, which would in the end have saved costs”. Mrs Justice Whipple continued:
“there is a world of difference between a case which comes to trial after reasonable efforts at settlement have been made but settlement has proved impossible, and a case where one party has simply refused to engage, preferring to take the view that it will see its opponents in Court. This is the latter type of case. That attitude inevitably gets weighed in the balance when it comes to costs, if that party fails.”
The Judge decided to award the claimants a percentage (33%) of their costs. This avoided the prospect of continuing disputes over costs which might go on for months or years. The Judge also wanted to try and avoid “the spectre” of what she considered to be an “undesirable and unfair outcome”, namely of the claimants’ overall win being eradicated (in effect) by the defendants’ costs attributable to particular issues. It was better to determine the end position on costs now, once and for all.