This case involved a successful claim by the Claimant and a successful counterclaim by the Defendant. The overall result was that a balance of approximately US$ 2.4 million was due from the Claimant to the Defendant. The Court was then required to address the issue of costs. The general rule in litigation is that the loser pays the winner's costs. The Court therefore had to determine who the "winner" was, as both parties had succeeded in their claims.

The Court concluded that the Defendant was the "winner", not least because it walked away with sums owing to it. The Defendant had also had to "fight on a battleground of [the Claimant's choosing]" to recover sums which the Claimant had admitted were due.

The Defendant was therefore entitled to recover its costs, with one exception. The Court deemed that the Defendant has been ill-advised to pursue one issue in its Defence. It was a substantial issue that had involved expert evidence and accounted for around 25% of the Defendant's costs and 33% of the Claimant's costs in the litigation. On a mathematical approach, a reduction of around 35% of the Defendant's costs would have been made. However, "standing back and looking at the matter overall" the Court concluded that the Defendant could instead recover 50% of its costs.

Although confined to its own facts, this case is a good example of the Court utilising its discretionary powers when making an award of costs and shows some of the factors that it will take into account when making its decision.

Case: Pindell Limited and another v Airasia Berhad [2010] EWHC 3238 (Comm)