“Notwithstanding the above, the Claimants must prove that the Financial model described under the heading ‘C Overall Methodology’ is an appropriate model upon which to base a damages claim founded in tort. Without prejudice to the foregoing, many of the losses claimed are too remote and were not foreseeable. For example, it is not foreseeable that if a ball mill is damaged by fire the Claimants will suffer loss because another facility, the Wanlip site, cannot function or fully function without the [Bursom] mill functioning.”
“Mr Stanbury currently has no further comments to add to Mr Glynn’s and/or Mr Hall’s respective positions.”
“His submission, in effect, was that the landlord was, throughout, seeking damages in amounts which were far in excess of the amount to which it was ultimately held entitled; and that it was the landlord’s inflated and unrealistic valuation of its claims which had made it impossible to dispose of the action by agreement in 1996. He accepted, ofcourse, that the amount of the first payment in turned out to be less than the amount to whichthe landlord was entitled; but he submitted that that was irrelevant; when the Secretary ofState increased the amount notionally in court to£450,000 , the landlord would not accept it.The action went on because the landlord was not interested in any reasonable offer; and, inthose circumstances, the landlord must bear its own costs. 32. The submission has some superficial attraction on the facts of the present case; but, for my part, I would reject it. It seems to me that a court should resist invitations to speculate whether offers to settle litigation which were not in fact made might or might not have been accepted if they had been made. There are, I think, at least two reasons why a court should not allow itself to be led down that road. First, the rules of court provide the means by which a party who thinks that his opponent is not open to reason can protect himself from costs. He can make a payment in; he can make a Calderbank offer; now, under theCivil Procedure Rules 1998 , he can make a payment or an offer under CPR Pt 36. The advantage of the courses open under the rules is that they remove speculation. The court can see what offer was made, when it was made, and whether it was accepted. Second, speculation is likely to be a most unsatisfactory tool by which to determine questions of costs at the end of a trial. It is not, I think, suggested that each party would be required to disclose, at that stage, what advice it had received, from time to time, as to the strengths and weaknesses of its claim or defence. But without knowing that – and without a detailed knowledge of the financial and other pressures to which each party was subject from time to time - speculation would be hopelessly ill-informed. If Mr Gaunt’s submission were to be accepted generally, there would, I think, be a serious danger that, at the end of each trial, the court (in order to decide what order for costs it should make) would be led into another, potentially lengthy, inquiry on incomplete material into ‘what would have happened if . . .?’ I am not persuaded that that could be compatible with the overriding objective to deal with cases justly.” (2) In Hall v. Stone[2007] EWCA Civ 1354 the claimants had not recovered as much as they had claimed and the judge awarded them 60% of their costs. In allowing the appeal, Smith LJ considered that the claimants had been the successful party: they recovered damages when the defence was that they were not entitled to any damages; there was no Part 36 offer and the defendant had not won on an important issue. At paragraphs 72 to 74 Smith LJ said this: “he would not have awarded them any costs but he thought that they had not succeeded altogether because they had not recovered as much as they had contended for. That question is best considered under the rubric ofCPR 44.3 (4) which requires the judge to consider whether a party has succeeded on part of his case even though not wholly successful. It seems to me that that provision is designed to allow the judge to take into account on costs the fact that the losing party actually won on one (or more than one) issue in the case. I do not think it means that the judge can cut down the costs of the successful party merely because he has not done quite as well as he had hoped. 73. What amounts to partial success will be a matter of fact and degree and will be case sensitive. The focus should be on the partial success of the losing party on an issue with costs consequences. The mere fact that the defendant has succeeded in keeping the damages down below the sum claimed by the claimant will not necessarily make him the victor or even a partial victor. Of course, where, as in Painting, the main issue in the case was whether the claimant had grossly exaggerated the claim and that issue had important costs consequences, it will be open to the judge to hold that the defendant was the victor. But if the claimant’s exaggeration was no more than to put his case rather high, it does not seem to me that a defendant who has not made an effective and admissible offer can be regarded as the victor. I would accept that exaggeration by a claimant may be taken into account as ‘conduct’ underCPR 44.3 (4)(a). However, for a defendant to regard himself as a winner or even partial winner on an issue of exaggeration, the exaggeration must be an important feature of the claim with costs consequences. 74. In the present case, it cannot be said that the respondent won on any issue or any part of her case. She succeeded only in keeping the damages down but, as she was contending throughout that there should be no damages at all and as she made no effective offer of settlement, that cannot amount to partial success. To the extent that the judge thought that the respondent had had partial success, I think he was in error.” (3) In Painting v. University of Oxford[2005] EWCA Civ 161 the claimant sought damages in a personal injury action of£400,000 but was awarded some£25,000 . The University contended that she was exaggerating her symptoms. The hearing was taken up with that issue and the University won. In dealing with the question of exaggeration, Longmore LJ said this at paragraph 26 in relation toCPR rule 44.3 (5)(b): “25. I add very short observations on two matters only. The first is this.The court is required, as my Lord has said, to have regard to the conduct of the parties by virtue of Part 44.3(4)(a). Part 44.3(5) provides that the conduct of the parties includes: “(b) whether a claimant who has succeeded in his claim, in whole or in part, exaggerated his claim”
“In my view, the reality of this case is that Mrs Ali was the winner. She was facing a claim substantially greater than the amount finally awarded. There were, as I have said, competing claims and offers, not only as to the manner of calculation of the amount due but as to the amount, an issue as to the latter ranging from nil to a balance of£80,000 after giving credit for the monies received. The sum of£12,746.41 ordered was arguably as limited a loss as it was a gain. And it emerged as a result, not only of Mr Islam losing the case on principle on the main issues in the case, but also as to the true amount due out of a very much larger claim. The disparity between what Mr Islam sought, including what he put Mrs Ali through to get it, and what he received was so large as to put the relatively small amount finally awarded in the balance between two rival contentions into relative insignificance.”