Consideration
10 There are cases where proportional costs orders are made or orders are made benefitting the respective parties in respect of particular matters each has won or lost. This has occurred, for example in areas such as intellectual property disputation. Usually Courts are generally inclined to make a more general costs order.
11 I do not accept that because some of the comments complained about did not succeed, a mathematical calculation to the award of costs should be taken. I acknowledged the respondent's argument in relation to the level of its preparation in responding to the allegations and I accept that the case was narrowed when it came to trial. I speculate that the imputations that were pleaded were probably abandoned in favour of a more direct, ordinary-meaning approach to the words complained of. In the end the applicant simply pointed to imputations as possible meanings that could be drawn. This meant that some refined arguments did not need to be addressed. However, in my view, there was no major deviation from the essence of the case that was put.
12 The respondent submitted that a rough percentage deduction should be applied. I did not think that such an order is the appropriate way in which to deal with some wasted work in responding to the ultimately narrower case which was put. I was initially open to the approach that, at the very most, a small percentage reduction of the applicant's taxed costs might be ordered, given the abandonment of some of the pleaded case at the hearing but in the end did not consider that a reliable way of measuring the wasted work.
13 Senior Counsel for the applicant suggested another alternative being an order which might have been made in the interlocutory stages where the respondent could have any costs thrown away as a result of the amendments made. I was not attracted to that course as the respondent should have applied for an order in those terms at the time.
14 When considering the question of costs it is important to return to the facts of the case. There are some cases that lend themselves to a discrete analysis of points won and lost or a broader apportionment of costs. And there are other cases, like the present, where the points really are all in the "melting pot" and while the successful party may lose some and win others, the reality is that it was the entirety of the matter that was in dispute. In a case such as this, if a party makes out the discrimination alleged in respect of a number of important matters, it is difficult to unbundle the points won from any of those which did not succeed. In the result, I consider the applicant should have its costs for this reason, but not for the amendments made to the pleadings raising points which were not pursued.