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News | Tue 25th Aug, 2020
Aqeel Noorali, representing the Motor Insurance Bureau, successfully defended an appeal brought by the claimant following a split liability decision at first instance. Following a trial containing both a claim and counterclaim, the first instance judge found the claimant to be 85% responsible for the road traffic accident and the uninsured and unrepresented first defendant was found to be 15% responsible. Part of the first defendant’s claim for damages was a modest sum for the value of his vehicle that was written off in the accident, a car that he had paid £2,875 for some ten months before the accident. The judge awarded £3,500 as damages for the value of the car. The judge went on to consider the matter of costs and considered the defendant to be the successful party, making an order that the claimant should pay the defendant’s costs. As QOCS applied, the costs liability was to reduce the amount of damages awarded to the claimant.
Whilst the decision on liability was not challenged, the claimant challenged the first instance judge’s decision on quantum and costs. The claimant argued that the judge was wrong to award more than the purchase price of the car. On appeal, the court considered that the judge had sufficient information before him to arrive at his valuation of the pre-accident value of the car, even though it was more than the purchase price. Permission to appeal was refused. Once again, this highlights the latitude given to judges who hear the evidence to make their own decisions. Such decisions are very rarely held to be “wrong” unless, of course, the appellant can demonstrate that the judge did something truly out of the ordinary.
However, and quite understandably given the impact on the Claimant’s solicitors, the focus of the appeal was on the question of costs. The claimant sought to challenge the costs order stating that, having proved some negligence on the part of the defendant, the claimant was the successful party in the claim (even thought it was the unsuccessful party in the counterclaim). The first instance judge should have awarded each party the costs of the claim in which they succeeded and the Claimant should have recovered the fixed costs under CPR 45 from the defendant. At the very least, they should have been awarded 15% of their costs.
The appeal judge disagreed. He considered that the judge was correct to look at the overall success of the parties. In this case, the defendant had clearly been the successful party overall. The case of Chell Engineering Ltd v Unit Tool and Engineering Co Ltd  1 All E.R. 378, CA set out the principle that in cases where the issues in the claim and counterclaim are interlocked, the usual order awarding both parties their costs does not always give a just result. So the trial judge was well within reasonable limits in making a special costs order awarding the defendant 100% of its costs. He was not wrong to award the claimant no costs and neither was he wrong for making a costs order that did not reflect the apportionment of liability.
Aqeel Noorali was instructed by Shola Kolawole of BLM Law.