The initial decision

An action was brought by an estate claiming ownership of a property. The defendant sought to argue that she owned the property outright. The judge at first instance held that it was held as joint tenants, 50% each.  In the first instance the Judge awarded costs to the Defendant, ordering that the Claimant pay 80% of the Defendant’s costs. The Claimant’s appeal in relation to proportions of ownership was rejected but the appeal relating to costs was upheld.

Deciphering who had ‘won’ the claim;

Difficulty appeared to arise for the initial Judge in assessing where success lay. Put simply, the following decision was made:

  • The Claimant had not obtained all that he had sought (obtaining only 50% of the full ownership sought). The Defendant had successfully defended the claim as presented and the Claimant was only partially successful.  Thus leaving a costs Order in favour of the Defendant.

On appeal:

The issue to be addressed here centered primarily around who had been the successful party.

The Claimant was claiming entitlement to the whole of the beneficial interest in the property.  The Claimant’s alternative position was that he was entitled to the lion’s share of the proceeds of the sale.

The Defendant was asserting that the Claimant had no beneficial interest and that by the law of survivorship she scooped the lot.

The Claimant submitted at the appeal that the original assessment of who was the successful party had been noted the wrong way round – put simply, it was submitted that prior to the litigation the Defendant was by survivorship the absolute legal owner and absolute beneficial owner too.  Had the Claimant done nothing that would have remained the case.  However, instead the Claimant succeeded on the claim for a severance and so obtained at least 50 per cent. Accordingly, he had obtained at least half of what he had claimed, whereas the respondent had lost at least half of what she had to start with. On this basis, he could properly be regarded as the successful party for costs purposes.

On appeal the Judge noted a rather simple approach to be taken to consider and determine who would be the successful party in such a claim:

  1. I would go further and say that in a case like this, the question of who is the unsuccessful party can easily be determined by deciding who has to write the cheque at the end of the case; and there is absolutely no doubt at all that the person who has to put his hand in his pocket and pay up the money that is in dispute was Phillip (The Defendant). He failed; his mother succeeded. She succeeded, all the more so, because Phillip adamantly and persistently refused to pay her a penny piece, notwithstanding his fall-back position. So I am in no doubt at all that this case did not end in a draw, but ended in victory for mother (the Claimant). Therefore the ordinary rule should apply.’

The ordinary rule referenced by the Learned Judge here is of course that the unsuccessful party will pay the costs of the successful party.  In this case however it was also noted that the Court could consider an alternative Order and to account for the parts of the case in which the Claimant failed it was noted that the costs liability of the Defendant would be discounted by 40%.  The appeal on costs was therefore allowed and the Defendant was ordered to pay 60% of the Claimant’s costs, to be assessed on the standard basis if not agreed.

It is perhaps not a routine occurrence for difficulties to be encountered in establishing where success falls in a claim where seemingly partial success has been achieved.  Indeed in this matter the Claimant has succeeded in 50% of their claim but the Defendant also seemingly succeeded in defending 50% of the claim which had been submitted against them.  However, the Judge does provide some very clear and rather simple guidance as to how success can be determined and that is by considering who has had to ‘pay out’ from the claim.

Of course sanction has been applied here to reflect the fact that the entire of the pleaded claim was not successful (limiting the costs recovered to 60% from the Defendant) however this is a much more favourable result than the original decision for the Claimant to pay the Defendant’s costs!  Although a very simple test to determine success, where a claim has been pursued and only partial success has been achieved this is likely to be an argument that is seen again.


Louise Satterthwaite