Costs in the Full Court
6 With respect to the successful application for leave to appeal, and the appeal, against the strike-out judgment of the primary Judge, the applicant submitted that it had succeeded in reversing the order that the Fourth Amended Statement of Claim be struck out, and that it was entitled to its costs against the respondents jointly and severally. At the general level, the respondents did not dispute that proposition. As we understand the submissions made on their behalf, there are only two respects in which the applicant's entitlement to its costs should be qualified: one which relates to the costs incurred (both by the applicant and by the respondents) in connection with the applicant's unsuccessful application for leave to appeal against the primary Judge's refusal to amend the group definition, and the other which relates to the insolvency of the eighth respondent, and the effect of the order made by Emmett J on 30 June 2010.
7 It was submitted on behalf of the applicant that the application for leave on the group definition question occupied such a minor portion of the energies of the parties, and of the attention of the Full Court, as to make it inappropriate to qualify its general entitlement to costs by reason of that limited respect in which it did not succeed. The respondents accepted that this question was a minor part of the Full Court proceeding, considered as a whole, but submitted that it was a part nonetheless, and that the applicant had failed in relation to it. They submitted that the Court should take a "broad brush" approach to the matter, and measure at 10% the contribution of this question to the Full Court proceeding generally. By this reasoning, the applicant would be denied 10% of its costs in the Full Court and the respondents would receive 10% of their costs in the Full Court, the nett result being that the respondents should pay 80% of the applicant's costs.
8 In addition to the submission to which we have referred, the applicant pointed out that, at least in relation to the group definition question, the cases run by the respondents were indistinguishable one from the other, yet they chose not to engage common representation to present those cases. It was said that it would be unfair, and inappropriate, for the applicant to be obliged to meet 10% of the costs of each of the respondents as the price for having failed on a relatively minor aspect of the case as a whole. Dealing with this submission first, we must say that we consider that the applicant has misunderstood the position for which the respondents contend. They do not suggest that the applicant should pay, or be debited, 10% of the costs incurred by each of them by reason of its failure on the group definition question. Rather, the respondents' proposal that they should pay 80% of the applicant's costs effectively fixes 10% of the applicant's costs as the amount to which the respondents collectively should be entitled by reason of their success on this question. Subject to our consideration of the applicant's submission that no account at all should be taken of the extent to which it failed before the Full Court (a matter to which we shall next turn), we can see no unfairness or inappropriateness in the approach proposed by the respondents. Indeed, we are disposed to think that, if anything, it works in the favour of the applicant.
9 Turning then to the primary argument advanced on behalf of the applicant, it was put that the question of group definition "occupied four of the 59 paragraphs of the principal judgment, which fairly represented the very little time taken in argument with that issue". The question was, however, not merely an "issue" within a challenge to the judgment of the primary Judge on which the applicant otherwise succeeded. It was a discrete challenge in its own right, and related to an order made by the primary Judge other than that on which the applicant succeeded before the Full Court. It is true that it constituted a minor aspect of the proceeding before the Full Court, but it was an aspect nonetheless. It is also true that not all of the respondents made oral submissions on the point, and that the submissions which were made were relatively brief. The respondents did, however, give attention to the point in the written submissions which they filed, and the brevity of the oral submissions which were made was no more than was justified by the very short submissions made orally on behalf of the applicant itself. The fact is that this point was one upon which the applicant made a discrete application for leave to appeal, and the respondents were required to resist it. There is no reason, either at the level of principle or as a matter of practicality, why costs should not follow the event in relation to this application for leave to appeal.
10 It was also submitted on behalf of the applicant that "argument on [this] issue was not so much directed to identifying error in the primary decision but to finding a practical way of resolving an issue between the parties without further delay". So much may be granted, but the approach proposed by the applicant did not recommend itself to the Full Court, and the result was that for which the respondents contended. We are not disposed to qualify the order that we would otherwise make by reason of our recognition that the approach which the applicant proposed was one which, on one view, might have had a certain pragmatic appeal.
11 That leaves the question of how the proportion of the contribution of the group definition question to the costs incurred by the parties before the Full Court should be identified. As we have noted above, the respondents proposed that, broadly, the question occupied about 10% of the parties' cases in the Full Court. The applicant resisted that suggestion, but offered no alternative. In the absence of agreement, the default position, as it were, would be for us to require the applicant to pay so much of the costs of each of the respondents as were incurred in relation to the application for leave to appeal from the group definition order; and to require the respondents to pay the applicant's costs, save to the extent that they related to that application for leave. Neither party proposed that we should take this approach, implicitly taking the position, which we would endorse, that the amounts most probably involved would be unlikely to justify the additional time and expense required to carry out the necessary quantification. Besides, an approach of this kind is likely, as we have suggested above, to expose the applicant to the prospect of paying a sum which would be greater in total than the amount of its own costs which would be sacrificed if the respondents' 80% proposal were adopted.
12 We consider that, despite its obvious lack of precision, the robust approach for which the respondents contend is the one which should be taken. However, we take the view that 5%, rather than 10%, represents a fair approximation of the extent to which the group definition question is likely to have contributed to the costs of the parties. We take into account not only the relatively minor contribution which the question made to the length of the submissions advanced by the parties, but also the circumstance that the question was conspicuously less complex, and less difficult, than those with which the first two orders made by the primary Judge on 11 December 2009 were concerned. It follows that, subject only to our consideration of the complication introduced by the circumstances of the eighth respondent, we shall order the respondents to pay 90% of the applicant's costs of the applications for leave to appeal.
13 The respondents submitted that, as the price for an order requiring them generally to pay its costs, the applicant should be required to give an undertaking to the court that it would, within 28 days, make application, both in the proceeding before the Full Court and in the proceeding before the primary Judge, for leave to proceed against the eighth respondent "and for any relevant costs orders made against [the respondents]…. to also be made against [the eighth respondent]". The rationale for this proposal was that the eighth respondent played a full part in the hearing before the Full Court (which, as noted above, was concluded before Emmett J's order was made), but its liability, or potential liability, to share the burden of paying the applicant's costs would depend upon "the whim of the applicant as to whether or not to seek an order that [the eighth respondent] pay these costs". The applicant has declined to offer any such undertaking, contending that the court should simply order that the respondents pay the appropriate percentage of its costs.
14 The starting point for any consideration of the respondents' submission is that the sum which they will be obliged to pay (whether with or without the undertaking which they propose) will represent the residue of the applicant's entitlement to its costs in relation to the applications for leave, and the appeal, on which it succeeded, after taking account of the impact of the application upon which it failed. Each of the respondents moved the primary Judge to have the Fourth Amended Statement of Claim struck out. Each was properly made a respondent to the application for leave to appeal. Had there been one party only opposing the applicant, the applicant's case, and presumptively its costs, on the application for leave would have been no less than they were. The principle of joint and several liability for the applicant's costs, which was accepted by the respondents, implies that any one of them is appropriately fixed with an obligation to pay the whole of the applicant's costs.
15 It follows, in our view, that the presence or absence of the eighth respondent as a viable party against whom the applicant might seek its costs, or a contribution to its costs, is irrelevant to the legal justification for the applicant's entitlement to its costs from any one of the respondents. Put another way, once the principle of joint liability be accepted, no one of the respondents can be heard to say that the legal basis of its obligation to pay the applicant's costs is affected or qualified by the circumstance that a like obligation cannot be imposed on the eighth respondent. There is, therefore, no basis for us to require the applicant to make the undertaking proposed by the respondents as a condition for the making of a general order, to which the applicant is otherwise entitled, that the respondents pay its costs.
16 For the above reasons, we shall order that the respondents pay 90% of the applicant's costs of the applications for leave to appeal and (in the case of the applications against the first two orders made on 11 December 2009) the appeal. Although the parties made no submissions on the subject, the applicant's costs will included costs incurred on the present application for costs.
17 We appreciate that the approach we have taken may be viewed as unsatisfactory from the perspective of the respondents. Assuming - as seems to be implicit in their submissions - that each of them would have a right of contribution from each other in relation to the applicant's enforcement of the general costs order which we propose to make, absent such an order binding on the eighth respondent, the respondents would have no such right of contribution as against it, and would each be obliged to contribute one quarter, instead of one fifth, of the applicant's costs entitlement. This difficulty, however, lies wholly along the axis between the respondents and the eighth respondent. The applicant should not have to concern itself with it. Unless otherwise minded to seek leave to proceed against the eighth respondent, the applicant should not be required to take the potentially inconvenient and costly steps implicit in the respondents' proposal as the price for obtaining an order which, as against any one, or all, of them separately from the eighth respondent, is its conventional entitlement.