Nigel Witham Ltd v Smith & Anor (No. 2) [2008] EWHC 12 (TCC) (04 January 2008)

Nigel Witham Ltd v Smith & Anor (No. 2) [2008] EWHC 12 (TCC) (04 January 2008)

The Defendants were the successful party as they received a net payment from the Claimant and succeeded on the main 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 warrant a further reduction, and the...

Source-derived case information.

Citation
[2008] EWHC 12 (TCC)
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 (technology and Construction Court) / Post Trial Costs Judgment
Outcome
Costs judgment: Defendants awarded 85% of their costs, with an interim payment ordered.
Legal Topics
Costs Orders, Part 36 Offers, Alternative Dispute Resolution (adr), Professional Negligence, Expert Evidence
Civil Procedure Construction Law Costs Orders Part 36 Offers Alternative Dispute Resolution (adr) Professional Negligence Expert Evidence

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Summary, issues, holding and outcome

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Parties

Nigel Witham Ltd

Claimant

Mr Robert Lesley Smith

Defendant

Miss Jacqueline Isaacs

Defendant

Procedural Posture

Civil (technology and Construction Court) / Post Trial Costs Judgment

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 abandonment of a counterclaim?
  3. 3 Should the timing of mediation/ADR affect the costs order?

Ratio Decidendi

The Defendants were the successful party as they received a net payment from the Claimant and succeeded on the main 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 warrant a further reduction, and the Defendants are entitled to 85% of their costs, including after the expiry of their Part 36 offer, with an interim payment ordered.

Court Disposition

Costs judgment: Defendants awarded 85% of their costs, with an interim payment ordered.

Orders

  • Claimant to pay Defendants 85% of their recoverable costs, excluding certain expert fees.
  • Interim payment of £41,200 to be made by Claimant to Defendants by 6 February 2008.