Lord Justice Jackson has shown his merciful side in overturning a “swingeing” costs order which would have wiped out the £75,000 damages won by the claimant in a housing case.
Syeda Begum succeeded in her claim for breach of statutory duty against Birmingham City Council, but failed in claims for negligence and misrepresentation.
In a swipe at the “bulging” authorities bundle provided to the court, Jackson LJ said: “The principles upon which the courts decide costs issues are well known. I will not re-state those principles lest, inadvertently, I add yet more bulk to the authorities bundles in future appeals.
“The real issue is how to apply those principles to the somewhat unusual facts of the present case.
“The claimant has succeeded in her claim and recovered damages of £74,876. Accordingly the claimant is the successful party in the action. The starting point therefore is that the court, in the exercise of its discretion, should award costs in the claimant’s favour.”
Judge David Grant, sitting at Birmingham County Court, made no order for costs for the period before issue of proceedings. Delivering the leading judgment in Begum v Birmingham City Council  EWCA Civ 386, Jackson LJ said the judge divided the proceedings into three periods.
For the first period, from issue to the time that breach of statutory duty was first pleaded on 14 May 2012, he ordered the claimant to pay the council’s costs with the proviso that the council should pay her expert’s costs.
For the second period, from 14 May 2012 to the handing down of the first judgment on 4 June 2013, he ordered the council to pay 40% of the claimant’s costs.
For the third period, from 4 June 2013 to the handing down of the second judgment in December that year, Judge Grant ordered the defendant to pay 80% of the claimants’ costs.
Jackson LJ agreed with the reduction of 20% in the claimants’ costs for the third period, describing it as an “eminently fair decision” challenged by neither party because the second trial had been caused by the claimant’s “deficient pleading”.
However, Sir Rupert said the claimant’s lack of success in the negligence and misrepresentation claims “could not possibly justify” an order that she paid the defendant’s costs for the first period or forfeited 60% of her costs during the second one.
“The claimant’s pleaded claims for negligence, misrepresentation and breach of statutory duty were different labels which the pleader applied to the same underlying facts.
“The factual and expert evidence which both parties assembled was directed to those facts. Both parties would have prepared and adduced substantially the same evidence, even if the claimant had only ever pleaded her claim as one for breach of statutory duty.”
Jackson LJ went on: “The claimant continued to assert, and the defendant continued to deny, the same basic facts and the same disputed propositions of expert evidence.
“There is no suggestion that the defendant lost an opportunity to settle. The defendant at all times disputed the factual basis of the claimant’s claim.”
Lord Justice Jackson allowed the appeal, and ordered that the claimant recover 85% of her costs pre-issue, and 85% of her costs during the first two periods.
Lord Justice Bean agreed for his own reasons, and Lord Justice Sales agreed with both.