Nigel Witham Ltd v Smith & Anor (No. 2)

Nigel Witham Ltd v Smith & Anor (No. 2)

The Defendants were the successful party as they received payment from the Claimant and succeeded on the majority of issues. However, due to the abandonment of a significant counterclaim, the Defendants’ recoverable costs should be reduced by 15%. The timing of mediation did not justify a further reduction. The Defendants’ Part 36 offer entitles them to costs from the expiry of the offer period, but the 15% reduction still applies. An interim payment on account of costs is appropriate, set at £41,200, to be paid by the Claimant by 6 February 2008.

Parties
Claimant: Nigel Witham Ltd; Defendant: Mr Robert Lesley Smith; Defendant: Miss Jacqueline Isaacs
Jurisdiction
England and Wales
Judgment Date
04 January 2008
Procedural Posture
Civil / Costs Judgment Following Trial
Outcome
Defendants awarded 85% of their recoverable costs, with an interim payment ordered.
Legal Topics
Costs, Part 36 Offers, Counterclaims, Alternative Dispute Resolution (adr)
Civil Procedure Construction Law Costs Part 36 Offers Counterclaims Alternative Dispute Resolution (adr)

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 8 Party arguments 2 Amounts and remedies 10
Sign in to unlock

Parties

Nigel Witham Ltd

Claimant

Mr Robert Lesley Smith

Defendant

Miss Jacqueline Isaacs

Defendant

Procedural Posture

Civil / Costs Judgment Following Trial

Legal Issues

  1. 1 Who is the successful party for the purpose of costs?
  2. 2 Should there be a percentage reduction in the Defendants’ recoverable costs due to the abandoned counterclaim?
  3. 3 Should the timing of mediation/ADR affect the costs order?

Ratio Decidendi

The Defendants were the successful party as they received payment from the Claimant and succeeded on the majority of issues. However, due to the abandonment of a significant counterclaim, the Defendants’ recoverable costs should be reduced by 15%. The timing of mediation did not justify a further reduction. The Defendants’ Part 36 offer entitles them to costs from the expiry of the offer period, but the 15% reduction still applies. An interim payment on account of costs is appropriate, set at £41,200, to be paid by the Claimant by 6 February 2008.

Court Disposition

Defendants awarded 85% of their recoverable costs, with an interim payment ordered.

Orders

  • Claimant to pay Defendants 85% of their recoverable costs, excluding costs of two expert reports and the judicial settlement conference.
  • Claimant to make an interim payment of £41,200 on account of costs by 6 February 2008.