The principles of the overriding objective and proportionality that underlie the Woolf reforms have led to a new emphasis on costs in litigation.
There can be no doubt that the Civil Procedure Rules have produced some profound and beneficial changes in litigation.
The decision of David Foskett QC in Little v Sebire is positive proof that some of the best aspects of Woolf, such as the Part 36 provisions, will make, and are making, a real difference to the way in which we litigate.
However, in this era, significant costs can be expended in arguing over costs themselves – the courts have even heard an appeal on a costs order made upon an application for an extension of time.
The decision of Justice Lloyd in Sony Music Entertainment Inc & anor v Prestige Records Ltd & anor provides some useful guidance on the court's approach to appeals on costs.
The case involved proceedings for infringement of copyright on certain recordings of Frank Sinatra.
All issues were resolved before the chancery master, who accepted the defendants' undertaking not to infringe copyright and ordered the usual relief in a copyright action, including the payment of costs by the defendants.
The defendants appealed the costs order, seeking instead an order that the claimants pay their costs.
The appeal was dismissed on its facts but the case also clarified Morland's decision in Hoddle v CCF Construction and confirmed that: a judge does have a largely unfettered discretion in determining any appeal on costs; judges should be wary of changing a master's order on costs in interlocutory matters; and in general, issues of proportionality should form part of the standard basis assessment of costs whether by way of detailed or summary assessment.
The fact that the appeal was lodged emphasises the importance of costs to current litigation.
Woolf has set the tone in both rule and action. In PPL v AEI he confirmed that the follow-the-event principle of litigation is the starting point only.
This is no doubt the correct principle.