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How to simplify costs orders

At the end of a trial there is not always a clear “winner”. In such cases an order as to costs along these lines is not uncommon:

  1. The defendant do pay the plaintiff’s costs of the action with respect to [cause of action A].
  2. The plaintiff do pay the defendant’s costs with respect to [causes of action B and C].
  3. There be no order for costs with respect to the defendant’s counterclaim.
  4. There be liberty to apply within 30 days for any other order that may be sought.

I have been involved a few such matters recently. The above is a simplification of actual orders made in one.

There has also been a trend, at least amongst some Judges, to try and avoid such cost orders as they are more difficult to give effect to. The uncertainty as a result of complex cost orders may result in protracted proceedings.

Although it contains no new analysis or principle, I consider a recent decision of the Court of Appeal may be of use to lawyers who want to submit that the trial judge should make a simpler order in relation to costs.

In Nelson v Moorcraft [2014] WASCA 212 (S) Buss, Newnes and Murphy JJA said:

[11] After taking into account the successes and failures of each of the parties on particular issues…justice would be done as between the parties if:

(a) the trial judge’s order as to the costs of the District Court action were to be set aside;
(b) Mr Moorcraft were to be ordered to pay 70% of Mr Nelson’s costs of the District Court action, including the costs of the counterclaim and any reserved costs, to be taxed if not agreed; and
(c) Mr Moorcraft were to be ordered to pay 70% of Mr Nelson’s costs of the appeal, including any reserved costs, to be taxed if not agreed.

[12] These orders are preferable to this court endeavouring to make individual orders by reference to particular issues or events

(emphasis added)

Subsequently, in Fraser v Burswood Resort (Management) Limited [2014] WASCA 130 (S), Martin CJ, McLure P and Newnes JA said:

“[I]n cases such as this, the usual practice of the court is to reduce the costs payable to the successful party by a proportion which reflects the contribution which the issues upon which that party failed made to the overall costs of the proceedings. That practice recognises the desirability of reducing the ambit of any taxation of costs in the interests of the parties and in the interests of the efficient utilisation of the limited resources of the court. The extent of the reduction in the costs payable to the successful party in any particular case will be assessed by the court as a matter of impression rather than science. In this case, it is our view that the respondent’s costs should be reduced by 20% to reflect its failure on the issues raised by the cross-appeal. Accordingly, the court will order that the appellant pay 80% of the respondent’s costs of the appeal to be taxed if not agreed, and that there will otherwise be no order with respect to the costs of the notice of contention or cross-appeal.”

These passages may be usefully quoted at the trial level.

Author:

Edward Greaves is a barrister at Francis Burt Chambers in Perth, Western Australia. Edward takes briefs in most civil and commercial litigation matters as well as financial and complex crime and regulatory and government matters. View profile | Connect on LinkedIn

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