Apportionment of Costs Between Issues

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Fourie  -v-  Le Roux and Others

This was an unreported case involving the apportionment of costs. 

When the main action had come before the Court of Appeal both appeals had been dismissed and it had been ordered that the Claimant pay most of the Defendants’ costs of the Claimant’s unsuccessful appeal and the Defendants do pay most of the Claimant’s costs of the Defendants’ unsuccessful appeal.

The Court of Appeal had directed that the Costs Judge should apportion the costs between the application for and discharge of the first injunction and the application of the second injunction.  It is not necessary to go into the background of the case. 

When costs were being determined the Costs Judge found that all of the Defendants’ costs were relevant to the discharge of the first injunction and none were relevant to the second injunction and that the Defendants were entitled to all their reasonable costs. 

The Court of Appeal accepted that it was unjust for the Claimant to pay all of the Defendants’ costs without recognition of the fact that some of the same material would have been used in both injunctions. 

Costs must have been incurred for two purposes and therefore a broader apportionment of the cost had to be made between each of the two purposes. 

This case shows that where costs are common to different issues in a case and where the ultimate result in relation to those issues has been different that a broad-brush apportionment of the costs incurred should be made.