As a broad statement of principle in relation to costs, the losing party and usually pays the costs of the winning party. This is known as the “costs following the event” rule.

The costs payable by one party to another are generally in the discretion of the court. The court will usually take into account the conduct of the parties, which includes:

  • the conduct of the parties in relation to the litigation;
  • the extent to which the parties followed the PD Pre-action Conduct and any relevant pre-action protocol;
  • the extent to which it was reasonable for the parties to raise, pursue or contest each of the allegations or issues;
  • the manner in which the parties pursued or defended the action or particular allegations or issues;
  • whether the successful party exaggerate of the value of the claim;
  • whether a party was only partially successful;
  • any “payment into court” or “admissible offer to settle”.

The court will look closely, following the result, at whether a party has achieved a more advantageous result than any Part 36 offer previously rejected by that party.

The court will usually make an order for an interim payment on account of a costs liability of the losing party at the end of the trial. For shorter hearings, the court is likely to immediately assess costs rather than wait for what is known as “a detailed assessment of costs” at some future hearing.