In Biffa Waste Services Ltd and another v Maschinenfabrik Ernst Hese GMBH and others – Butterworths Law Direct 17.11.08 the TCC held that, in a case where the Claimants had only recovered damages of £140,249 in circumstances where its costs were in excess of £1m and where it had advanced a claim just short of £2m, it was not appropriate to make an order for costs under CPR r 44.3(2)(b) which provides: '(2) If the court decides to make an order about costs — (a) the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party; but (b) the court may make a different order …'

It held that the appropriate order was that the Claimants should have its costs of the action, to be assessed on a standard basis, if not agreed.