Summary

The court determined the costs arising out of a largely successful nuisance claim against three companies.

Facts

The court was required to determine the costs arising out of the nuisance claim brought by the claimants (C) against the defendant companies (D1, D2 and D3).

C had alleged a long-standing and continuing nuisance by odour caused by rendering operations at a site which had been successively operated by the defendants. Proceedings were initially commenced against D2 alone. D1 and D3 were subsequently added as defendants. C argued that (i) D2 was estopped from denying that it had operated the site throughout the period since January, 1 2005; (ii) the Limitation Act 1980 s.32(1)(b) applied, on the basis that D2 had deliberately concealed a fact relevant to C's right of action; (iii) the court should exercise its discretion under CPR r.19.5 to permit D1's addition as a defendant. All three arguments were based on a common factual foundation. In the result, C's submissions based on estoppel were dismissed, but they succeeded on the other two issues. It was therefore ordered that none of C's causes of action against D1 which accrued on or after January 1, 2005 were statute-barred. The issue was the appropriate costs order under CPR r.44.2

C accepted that they could not recover the costs of the application in which the issue of estoppel was raised, but argued that, with that exception, they should be awarded all their costs. The defendants accepted that C had succeeded in their objective overall, but argued that the estoppel issue was a discrete one which had given rise to substantial costs. They pointed to the fact that the estoppel issue was raised very late in the day but became the primary argument advanced by C, with the result that they had to devote a substantial amount of time and effort to the preparation and presentation of their successful opposition to that argument.

Held

C had succeeded overall. Their three arguments were merely different legal approaches to the common factual foundation, namely three possible routes by which they invited the court to enable them to claim compensation for the alleged nuisance during the early part of the relevant period. C's central contention was that they had commenced proceedings against D2 alone because they had been positively led to believe that D2 was the appropriate defendant in relation to the whole of the period of their claim; the court found in C's favour on that factual basis, and in doing so was critical of the defendants' conduct at various stages before and during the proceedings. In correspondence and the early stages of the proceedings, the defendants had never made a clear statement as to who had been responsible for the operation of the site at different stages of the relevant period. D2 had been guilty of deliberate concealment and active misrepresentation, and had acted for the benefit and as the agent of D1. It was not unreasonable for C to have pursued their unsuccessful estoppel argument. Moreover, because the factual and evidential foundation of C's three arguments was the same, the raising of the estoppel issue did not add greatly to the volume of evidence. The fact that the substantive hearing had taken longer than expected was not because of the late raising of the estoppel issue. However, it did add significantly to the length of the hearing, and put the defendants to significant additional work in preparing and presenting their submissions. That additional burden was increased by the fact that the precise way in which C put their case was not clarified until their skeleton argument was served a week before the hearing. Balancing those considerations, it was not just for C to recover all of their costs. However, it was fair to order the defendants to pay a substantial proportion of C's costs, namely 90 per cent, assessed on the standard basis. The defendants were jointly and severally liable to pay the costs, and they were ordered to make a payment on account of two-thirds (see paras 10-12, 14-19, 21, 23-24 of judgment).