costs of appealed strike out

[snowman]

If a claim is made and the defendant makes a successful application for the claim to be struck out, the defendant can get their costs for making the strike out application ordered to be paid by the claimant.

If the claimant has their claim struck out they can make an appeal to overturn the strike out decision.

If the claimant/apellant succeeds at the appeal to overturn the strike out, what is the position as to costs?

1) I understand the order to pay the defendant's costs of making the original strike out application can be quashed.

2) I understand, the claimant/apellant can be awarded their costs of making the successful appeal.

Question: What is the position as to the costs spent by the claimant incurred fighting the original strike out application if it is overturned?

If claimant had defeated the original strike out application, he could have got his costs for it at the time, but sadly lost. Can the appeal court overturning the strike out decision go back and award the claimant's costs of the original strike hearing as though he had defeated the orignal strike out application?

Is this likely? or will the claimant's costs wasted losing the strike out hearing only be carried forward until the final trial?

Is there a CPR reference for this?

Thanks

[R0b]

CPR 44.

The court always has discretion to award costs, but the general rule is that the successful party will be entitled to the recovery of their costs. That general presumption can be displaced for a number of reasons such as:

- How successful they were. For example, if they made 10 legal points but only successful on 5 then you could say they should only be entitled to half their costs or at least a reduction since there were 5 points that were defeated.

- Conduct, reasonableness of the party.

- Proportionality of costs. A court is unlikely to award costs to a top QC if the case is very straight forward and doesn't warrant a QC, they would likely award costs based on the fees by a barrister commensurate to the level of experience needed for the case.

If a court orders one party to pay costs, but they seek to appeal then unless that party is granted a stay (normally exceptional cases), they are still required to pay the costs even if the appeal is pending.

Where the court makes no reference to costs in the judgment or in the order, it is assumed that there is no order as to costs and are not recoverable.

If the appeal is allowed, the appeal court could reverse the costs in the opposite direction, make no award of costs, reduce/increase costs or chuck it back to the lower court to determine costs in a separate hearing. There are other costs orders the court could make and you can find them in paragraph 4.2 of the Practice Direction 44.

If the appeal is lost, then the successful party could seek costs of that appeal.

The only exception that might apply is where the claim is allocated to the small claims track. Normally costs are limited but the rules for small claims does not actually apply to Part 23 applications (applications for strike out or summary judgment are applications made under Part 23) so any argument around that could be easily rebutted.

[snowman]

Thank you for such a comprehensive answer. The case was struck out pre-allocation but the value is within the small claims limit.

If the appeal succeeds is it pretty standard for the costs order to be reversed as though the claimant had successfully defeated the strikeout? The reason I ask is that someone told me the court would normally only order costs for that particular stage of proceedings i.e. the costs of the appeal but not costs for prior proceedings and that the prior costs would roll over. But he said if the judge rules the strikeout application itself was unjustified (unlikley) it would be more likely to get those costs.

If the strike out costs are not reversed upon successful appeal and then the claim gets allocated as a small claim, I presume costs prior to allocation can still be awarded at the final hearing.

It would make more sense to me for the costs to be reveresed rather than just quashed because that would put the claimant in the likely position they'd have been in if they defeated the strike out.

Also, it makes negotiations easier as there is a clean slate and not have to go to trial to get the costs.

How likely would a reversal rather than a quash be normally and are there any circumstances that would affect whether the judge awards them or rolls them over?

The claimant has at all times been reasonable and followed procedures.

The reason I ask is that being able to get the costs reversed at the appeal drastically affects the negotiating position if negotiations take place prior to the appeal it is important to weight up different outcomes.

[R0b]

I would refer you to my last post, the general starting point is that the successful party is entitled to their costs unless there is good reason to depart from it. No one can predict what order a judge will make as it depends on the day and what arguments are made.