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MR M CHACKSFIELD (instructed by Wedlake Bell) appeared on behalf of the Defendant
Crown Copyright ©
HIS HONOUR JUDGE BIRSS:
"If the court decides to make an order about costs, (a) the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party but (b) the court may make a different order."
"In deciding what order (if any) to make about costs the court must have regard to all the circumstances including
(a) the conduct of all the parties,
(b) whether a party has succeeded on part of its case, even if he has not been wholly successful and
(c) any payment into court or admissible offer to settle made by a party which is drawn to the court's attention and which is not a offer to which the cost consequences under Part 36 apply."
"In my judgment it is plain that, in considering what order to make as to costs, the court has jurisdiction to take into account, in the circumstances of the present case, the merits of the substantive relief. In my judgment there is a lis before the court as to the question of costs."
"It will, however, in my judgment, be a very unusual set of circumstances in which, where proceedings are no longer relevant or are academic (whether this be on application for discontinuance or at the substantive hearing of the proceedings) the court will, in its discretion, be willing to consider the substantive merits of the claim."
"In the first place it seems to me that I should be cautious about expressing any view on a substantive matter which no longer concerns the parties to the action but may be relevant at some future point of time to other parties who are successors in title."
Following further argument, the court gave the following further judgment: