This is the decision on costs in this dispute. The judge noted that the judge in the substantive claim had effectively found in favour of Enterprise on three of the five issues in question.

The judge held that it would be more appropriate to use the proportionate costs basis of assessment, which involves determining which party has been successful and fixing the percentage proportion of its overall costs which the successful party should have.

Akenhead J decided that Enterprise should have 80% of its costs because:

1. overall, Enterprise had succeeded in the litigation, effectively securing its strategic objective of ensuring that the adjudication could not legitimately go ahead;
2. TMUL’s conduct in firstly prematurely pursuing the adjudication, and then subsequently not agreeing a full suspension of the adjudication whilst the Part 8 proceedings could be concluded, was relevant;
3. although one of the issues that TMUL “won” did involve the deployment of evidence, the large bulk of that evidence was undisputed;
4. the other issue on which TMUL “won” was, on analysis, simply part of a wider issue that Enterprise “won” – and in any event, it did not involve a substantial application of resources;
5. despite the fact that Enterprise’s pleaded case went beyond what was needed, the basic costs of the claim and hearing would have been incurred in any event; and
6. although Enterprise pursued arguments which were ultimately unsuccessful, it was not unreasonable for it to pursue those claims.

The judge stated that a reduction of 20% “is realistic, fair and reasonable” to reflect that both Enterprise and TMUL spent time and resources on the issues of novation and the basic validity of the assignment by TML to TMUL.