So who won?

Unlike football and bingo, the winner in litigation is not always so easily identifiable. The answer is crucial because Costs ordinarily accrue to the victor.

The legendary Lord Bingham MR in ROACHE V NEWS GROUP NEWSPAPERS (1998) set out a forceful test. “Has the plaintiff won anything of value which he could not have won without fighting the action through to the finish? Has the defendant substantially denied the plaintiff the prize which the plaintiff fought the action to win?”  

This was a libel action brought by the actor who played Ken Barlow in ‘Coronation Street‘ and centered around a piece in ‘The Sun‘ headed ‘Boring Ken Barlow was girl crazy stud ‘. Mr Roache won but didn’t beat the payment into court made by the defendant using a mechanism that was later superseded by our Part 36 regime. He ended up with a massive costs bill.

Another phrase encountered is that the winner is the party that walks away with some money. Whilst often correct that principle is not absolute. In MEDWAY V MARCUS (2011) 5 Costs LR 808 the claimant was after £525,000 in damages for clinical negligence. He failed almost totally on causation and netted just £2,500. The Trial Judge gave the claimant costs because he had made a recovery, albeit modest.

This was reversed by the Court of Appeal. When one aimed so high but recovered a mere pittance, it was absurd to pretend that the outcome was anything other than miserable failure. The order was reversed and the defendant was to be paid by the claimant (in fact the after the event insurer picked up a massive tab).

Never overlook the beauty of accepting a Part 36 offer from a defendant. Acceptance generates a deemed costs order!


Professor Dominic Regan

Special Advisor to Affiniti Finance


If your firm wishes to discuss any type of funding to pursue a claim, please contact us via: and one of our dedicated team will be assigned to help you.


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