Perochinsky v Kirschner (No 2)

The appeal before the Court of Appeal involved a dispute between the parties over the costs of litigation. The plaintiff, Perochinsky, was successful on one issue but unsuccessful on others. The primary judge had ordered the costs of the proceeding to be paid by the defendant, Kirschner, in a single lump sum. Perochinsky appealed the costs order, arguing that the primary judge should have made an order for costs on an issue by issue basis, pursuant to either Bullock or Sanderson orders, as the issues were separable.

The central legal issue was whether the primary judge should have ordered costs on an issue by issue basis rather than a single lump sum. The Court of Appeal considered the principles applicable to whether a Bullock or Sanderson order ought to be made. The Court noted that the general rule is that costs follow the event, and the meaning of "the event" must be considered in the context of the particular case. The Court also considered whether the issues in this case were separable and, if so, the appropriate form of order when deviating from the general rule.

The Court of Appeal found that the issues in this case were separable, and the primary judge should have made an order for costs on an issue by issue basis. The Court held that the appropriate form of order when deviating from the general rule is a Sanderson order. The Court noted that a Bullock order is appropriate where the parties have proceeded on the basis that there is a single dispute, while a Sanderson order is appropriate where the parties have proceeded on the basis that there are multiple disputes. In this case, the parties had proceeded on the basis that there were multiple disputes, and a Sanderson order was appropriate. The Court allowed the appeal and remitted the matter to the primary judge for a re-assessment of costs.

The Court of Appeal ordered that the matter be remitted to the primary judge for a re-assessment of costs in accordance with a Sanderson order. The Court noted that the primary judge should consider the relative success of the parties on each issue, the extent to which the issues were interwoven, and the conduct of the parties in determining the appropriate costs order. The Court held that the primary judge should make a costs order on an issue by issue basis, taking into account the principles applicable to a Sanderson order.