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Magical Marking Ltd & Anor v Ware & Kay LLP & Anor [2013] EWHC 636 (Ch) - 20/03/13


A claim to interest on damages, with costs, following modest success in a late claim for negligence in which the claimant recovered less than 1 per cent.

Held: The proposition that a defendant cannot contest costs due to a failure to make a sufficient Part 36 offer in Fox v Foundation Piling Ltd [2011] EWCA Civ 790 had no impact on the correct approach to who is the successful party, as laid down in the Roache line of authorities and most recently reaffirmed in Medway Primary Care Trust & Anor v Marcus [2011] EWCA Civ 750. Nor does the recovery of a trivial sum on account of a much larger claim make the claimant the successful party. Where a late amendment proves to be the sine qua non for the claimant's eventual success, the defendant is generally entitled to its costs incurred up until the making of that amendment (per Beoco Limited v Alfa Laval Co. Ltd [1993] EWCA Civ 22).

The defendant was the successful party. Claimant ordered to pay 85 per cent. The reduction in costs payable was justified as the defendant refused to admit negligence. It was not significant that the claimant made a small recovery on account of a last minute amendment.