The Court of Appeal has varied the High Court costs order in Gerard Butler’s case, increasing his recoverable trial costs from 17/19 to 18/20. The court also ordered Butler to pay the respondents’ costs of the appeal, while making no order for the costs of the separate costs hearing.
The ruling, delivered on 21 March 2024, followed the court’s earlier dismissal of Butler’s appeal in its entirety, subject to an outstanding question about the allocation of High Court costs. The court had heard oral submissions on that issue and on appeal costs. It also accepted a 45-page written submission and accompanying documents Butler provided on the afternoon before the hearing.
Butler had succeeded in his claim against the respondents after a 20-day High Court trial and received a substantial damages decree. However, he had not succeeded on every issue. The trial judge therefore reduced his costs, reasoning that two days should not be charged to the respondents. The judge had been told the trial lasted 19 days and awarded 17/19 of Butler’s costs. When later informed that the trial had taken 20 days, the judge declined to change the fraction, saying he had decided the matter “on principle”.
The Court of Appeal said the trial judge’s intention had been to disallow two days while allowing the costs and expenses of all Butler’s witnesses. It found no principle that justified retaining 17/19 when the trial had in fact lasted 20 days. It varied the order so Butler could recover 18/20 of his High Court costs. The court described this as a “very limited” allowance of the appeal.
On the costs of the appeal, Butler argued that the respondents’ conduct should disentitle them to costs, relying in part on a Supreme Court decision concerning exceptional costs orders. The Court of Appeal said complaints about the conduct of the trial had already been dealt with in the principal appeal judgment and could not be reopened at the costs hearing. It had made no finding adverse to the respondents on that conduct.
Butler also relied on his health and financial circumstances. The court expressed sympathy but said those matters were not among the statutory considerations listed in section 169 of the Legal Services Regulation Act 2015. As the respondents had been overwhelmingly successful on the substantive appeal, it ordered Butler to pay their appeal costs. Given his success on the High Court costs issue, however, the court made no order as to costs of the costs hearing before it.