Costs in Any Event: What Does It Mean?

If a court order states that one party is entitled to their “costs in any event”, it means that party is entitled to recover the costs relating to that particular hearing or application, regardless of which party ultimately wins the wider case. It is one of several types of costs orders that a court can make during civil proceedings.

Understanding the wording is important. An order for “costs in any event” is different from costs in the case, costs reserved or an order making no decision about costs at that stage. It can also create an immediate costs liability while the main litigation continues.

What does “costs in any event” mean?

The meaning of “costs in any event” is set out in the Civil Procedure Rules. In simple terms, where Party A is awarded “costs in any event”, Party B must pay the costs incurred by Party A in the relevant part of the proceedings, regardless of the final outcome of the case.

For example, imagine a claimant makes an interim application and succeeds. The judge orders:

“The defendant shall pay the claimant’s costs of the application in any event.”

The claimant is entitled to those costs even if the defendant later wins at trial.

The order separates the costs of that particular application from the overall costs of the proceedings.

How is this different from the general rule on costs?

The general rule in civil litigation is often described as “costs follow the event”. Broadly, this means that the unsuccessful party will normally be ordered to pay the successful party’s costs. However, the court has a wide discretion as to costs.

A judge can consider the parties’ conduct, whether a party succeeded on only part of its case, settlement offers and other relevant circumstances when making a decision about costs. The court can also make costs decisions during the case rather than waiting for the final trial.

An interim application may therefore produce its own costs order. Where costs are awarded “in any event”, the entitlement to those particular costs does not depend upon the final result.

What types of hearings can result in costs in any event?

The wording can be used following many different interim hearings and applications. For example, there might be an application concerning disclosure, an amendment to a statement of case, relief from sanctions or another procedural issue.

The judge can decide that one party should recover the costs incurred in dealing with that particular matter. The exact wording of the judgment or order should always be checked carefully because it determines what costs have actually been awarded. The order may relate to an entire hearing or only a particular issue.

What is the difference between costs in any event and costs in the case?

These expressions sound similar but have different consequences. Costs in the case generally means that the party who ultimately receives the costs of the proceedings will also receive the costs relating to that particular hearing or application.

An example of this is where the claimant obtains an order for “costs in the case” at an interim hearing. If the claimant ultimately wins and is awarded the costs of the action, those interim costs form part of its recovery. If the defendant ultimately receives the costs of the case instead, the claimant will not normally recover those interim costs. “Costs in any event” is different because the entitlement has already been determined.

If the claimant receives its costs of an application “in any event”, it remains entitled to those costs even if it ultimately loses the wider litigation.

What does costs reserved mean?

Costs reserved means the court has not yet decided who should pay the costs relating to that part of the proceedings. The decision is postponed until a later stage. This can happen where a judge considers it more appropriate to determine the costs position once further issues have been resolved.

The later court will then decide what should happen to those costs. This is different from costs in any event, where the court has already determined which party is entitled to recover the relevant costs.

How much has to be paid?

A party being awarded costs in any event does not necessarily mean the judge has decided exactly how much should be paid. The court may carry out a summary assessment of costs, particularly following an interim hearing. If so, the judge determines the amount payable there and then.

Alternatively, the order may provide for costs to be subject to detailed assessment if not agreed. In that situation, the parties can negotiate the amount. If they cannot reach agreement, the formal detailed assessment process may be required.

The distinction between entitlement and amount is important. The “costs in any event” order determines who is responsible for the relevant costs. A separate process may still be needed to establish their value.

What costs can be included?

The recoverable costs will depend upon the wording and scope of the order. An order concerning a particular application will normally relate to the reasonable costs associated with that application.

Depending upon the circumstances, this could include solicitors’ preparation, correspondence, attendance and advocacy, counsel’s fees and relevant disbursements.

It may also include the costs associated with preparing for the hearing. The costs of preparing an application or responding to one can sometimes be substantial, particularly where significant evidence, witness statements or legal submissions are required. However, an order does not automatically make every cost claimed recoverable.

What if there is a costs budget?

In costs-managed proceedings, the relationship between the costs order and any approved or agreed budget may also need to be considered. The court’s approach can depend upon the nature of the costs and the stage of the proceedings.

If costs ultimately proceed to detailed assessment, the costs management history of the case may be relevant when determining the amount recoverable. The wording of the order, the applicable costs rules and the relevant budget should therefore be considered together rather than assuming that the existence of a costs order automatically determines the amount payable.

Are costs in any event assessed on the standard basis?

The basis of assessment should be considered alongside the wording of the costs order. Where the court makes an order about costs but does not specify the basis of assessment, the rules generally provide for assessment on the standard basis.

On the standard basis the court will only allow costs that are proportionate to the matters in issue and reasonably incurred and reasonable in amount. Any doubt as to whether costs were reasonable and proportionate is generally resolved in favour of the paying party.

This is different from costs assessed on the indemnity basis, where proportionality does not apply in the same way and doubts about reasonableness are resolved in favour of the receiving party.

When does a costs in any event order take effect?

The precise payment position depends upon the wording of the court’s order and whether the costs have already been quantified. If the court summarily assesses the costs at the hearing at which the judgment or costs order is made, there may already be a fixed amount that one party is required to pay.

Where the costs have not been quantified, the parties may first need to agree them or proceed to assessment. This is why anyone receiving a costs order should look at the complete wording rather than focusing solely on the phrase “costs in any event”.

How ARC Costs can help

ARC Costs assists both paying and receiving parties following costs orders, including orders for costs in any event.

Where a party has been awarded costs, we can advise on the scope of the order, prepare schedules or Bills of Costs where appropriate and assist with negotiations and the assessment process.

For paying parties, we can review the costs incurred and identify areas where the amount claimed may be challenged.

We also assist with summary and detailed assessment, Bills of Costs, Points of Dispute, Replies, costs budgeting and settlement negotiations.

If you have received a judgment or order dealing with costs and are unsure what it means, the first step is to establish exactly what costs have been awarded, which part of the proceedings they relate to and whether the amount has already been determined.

An order for “costs in any event” may consist of only a few words, but it can create a costs entitlement that remains in place regardless of what eventually happens in the wider case.

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