Norma Corney -v- (1) Scotia Gas Networks Ltd (2) Southern Gas Networks PLC (3) Warner Holidays Ltd  EWHC 90167 (Costs)
Whether costs against D3 recoverable against D1 & D2 and whether common costs should be apportioned as to 2/3.
C brought a claim under the Fatal Accidents Act 1976 following the death of her husband from mesothelioma. D1 & D2 paid the Claimant £141,979 to settle the claim.
The Consent Order stated that D1 and D2 pay C’s costs of the action and that C pay D3’s costs in the sum of £2,500.00. The Bill recorded that C had agreed with D3 to discontinue the claim.
D1 and D2 argued that the intent of the Order was that C would recover only the proportion of her costs incurred proceeding against them and relied on the case of Abdul Kadir Nassif –v- Augusta Offshore Spa & Ors . Furthermore, under the Compensation Act 2006, the Claimant could have pursued one tortfeasor for 100% of the damages and left them to seek contributions from others. D1 & D2 also contended that the case was funded under a CFA and therefore the indemnity principle prevented the recovery of more than 2/3 of the common costs.
C maintained that the Order provided for costs of the action, without restriction, and sought to distinguish Nassif, arguing that there was no discontinuance so CPR 38.6 was not engaged; and, even there was a discontinuance, it took place as a part of the settlement at the conclusion of the action; and that D1 & D2 had encouraged C to join D3 and were aware of the costs consequences. C argued that common costs should be divided in accordance with the decision in Nassif and that costs should not be limited by the indemnity principle in the circumstances of this case.
Held: Absent any specific agreement, the necessary implication of the terms of settlement was that the costs of pursuing D3 were not recoverable against D1 & D2. Nassif could not be distinguished as the Claimant sought to do and the principles therein applied. Common costs could be divided where different purposes could be discerned but non-specific common costs e.g. the issue fee, could not be apportioned M & M Savant Ltd –v- Rajah  EWHC 90149 (Costs); Pacey –v- MoD (unreported) (20 July 2009); Dyson Technology Ltd –v- Strutt  EWHC 1756; Abdul Kadir Nassif –v- Augusta Offshore Spa & Ors  considered.