(1) Ted Baker Plc (2) No Ordinary Designer Label Limited –v- (1) Axa Insurance UK Plc (2) Fusion Insurance Services Limited (3) Tokio Marine Europe Insurance Limited  EWHC 1779 (Comm)
C had succeeded on a number of preliminary issues and sought an order for their costs thereof put at approximately £660,000. D argued that no order for costs should be made until the further issues in the case had been determined; that C should be deprived of a portion of their costs on account of their conduct on disclosure, a deduction which the parties agreed at £20,000; and that C should pay the wasted costs of the co-insurance issue on the indemnity basis. D submitted that C might fail on one or more of the remaining liability issues, or on quantum, and may not be entitled to costs of the preliminary issues. Eder J found that the preliminary issues were entirely discrete C were entitled to the costs thereof even if the remainder of the claim ultimately failed. D also argued that an order for costs had to take into account any Part 36 or other offers which could not be done until the end of the case when the terms of such offers could be disclosed. Absent agreement, Part 36.13 (2) precluded the Judge from being informed of the terms or even existence of any offer. However, he could not exclude the possibility of such an offer or that it might affect the exercise of the Court’s discretion under CPR 44.3(4). Eder J therefore found himself unable to make an immediate order for costs or an order for interim payment. D was therefore ordered to pay C’s costs of the preliminary issues subject to any offers made and less £20,000. Subject to any offers, C was to pay D’s costs on the indemnity basis of the co-insurance issue which had been hopeless from the outset.