Biffa Waste Services Ltd & Anor v Maschinenfabrik Ernst Hese GmbH & Ors [2008] EWHC 2657 (TCC) (31 October 2008)

Biffa Waste Services Ltd & Anor v Maschinenfabrik Ernst Hese GmbH & Ors [2008] EWHC 2657 (TCC) (31 October 2008)

Biffa was the successful party on both liability and quantum. OT failed to engage in settlement or pre-action protocol, and did not make offers until late. There was no intentional exaggeration by Biffa. The costs incurred were not disproportionate given the complexity and dual trials. OT cannot rely on Biffa's reduced recovery to avoid costs liability. The appropriate order is for Biffa to recover its costs on the standard basis.

Citation
[2008] EWHC 2657 (TCC)
Parties
First Claimant: Biffa Waste Services Limited; Second Claimant: Biffa Leicester Limited; First Defendant: Maschinenfabrik Ernst Hese GMBH; Second Defendant: Outokumpu Technology Wenmec AB; Third Party: Vanguard Industrial Limited (Trading as Pickfords Vanguard) (in voluntary liquidation); Fourth Party: Hese Umwelt GMBH
Jurisdiction
England and Wales
Judgment Date
31 October 2008
Procedural Posture
Commercial Construction Dispute / Post Judgment Costs Determination
Outcome
Costs awarded to claimants (Biffa) against second defendant (OT) on standard basis, if not agreed.
Legal Topics
Costs, Quantum, Liability, Pre Action Protocol, Part 36 Offers
Civil Procedure Construction Law Costs Quantum Liability Pre Action Protocol Part 36 Offers

Case Brief

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Parties

Biffa Waste Services Limited

First Claimant

Biffa Leicester Limited

Second Claimant

Maschinenfabrik Ernst Hese GMBH

First Defendant

Outokumpu Technology Wenmec AB

Second Defendant

Vanguard Industrial Limited (Trading as Pickfords Vanguard) (in voluntary liquidation)

Third Party

Hese Umwelt GMBH

Fourth Party

Procedural Posture

Commercial Construction Dispute / Post Judgment Costs Determination

Legal Issues

  1. 1 Whether the successful claimant should recover costs despite recovering less than claimed
  2. 2 Effect of conduct and offers on costs order
  3. 3 Proportionality of costs to quantum recovered

Ratio Decidendi

Biffa was the successful party on both liability and quantum. OT failed to engage in settlement or pre-action protocol, and did not make offers until late. There was no intentional exaggeration by Biffa. The costs incurred were not disproportionate given the complexity and dual trials. OT cannot rely on Biffa's reduced recovery to avoid costs liability. The appropriate order is for Biffa to recover its costs on the standard basis.

Court Disposition

Costs awarded to claimants (Biffa) against second defendant (OT) on standard basis, if not agreed.

Orders

  • Biffa to recover its costs of the action, assessed on standard basis if not agreed.
  • Payment on account of costs ordered in the sum of £300,000.