THE OWNERS, DEMISE CHARTERS AND TIME CHARTERERS OF THE SHIP "WESTERN NEPTUNE" V THE OWNERS AND DEMISE CHARTERERS OF THE SHIP "ST LOUIS EXPRESS" (NO 2)

[2009] EWHC 1274 (Admlty), Queen's Bench Division, Admiralty Court, Mr Justice David Steel, 26 June 2009

Admiralty – Costs – Apportionment – Successful claimant not entitled to full costs in the absence of counterclaim – Effect of settlement offers – Effect of late disclosure – Separate issue justifying special order – Civil Procedure Rules, rule 43.3(7)

Where the judge had apportioned liability in a collision case by one third to the claimant and two thirds to the defendant, and the defendant had not made a counterclaim because its ship had not suffered any damage, the claimant argued that costs should not be apportioned as per the apportionment of liability, but that it should have its full costs. There had been settlement offers of 60-40 from the defendant and (at a much later stage) of 80-20 from the claimant. David Steel J ordered that claimants should recover 65 per cent of their costs with no order as to defendants’ costs. The court’s discretion was flexible. As regarded the settlement offers: (i) the claimants had recovered a substantial proportion of their claim but had been found to be the authors of their own misfortune to a significant degree; (ii) the defendants offered to settle the case on 60/40 terms in April 2008. The outcome of the trial a year later was to achieve an improvement of only 6.6 per cent; (iii) the claimants offer to settle on 80/20 terms only emerged nearly a year later by which time the bulk of the costs had been incurred; and (iv) this offer was substantially wider of the mark than the defendants' offer. It would have imposed liability for £3.5 million more than the judgment. Further, there has been a substantial amount of late disclosure on the part of the claimants including a number of highly significant documents. Finally, the cost-intensive issue of “diving the streamers” should, as the defendants had argued, be regarded as a separate issue. A special order would be warranted but the CPR required that the matter should be fed into the question of apportionment.