Short v Crawley (No 40)

In the Federal Court, the plaintiffs, Short, commenced proceedings against the defendants, Crawley, and others, seeking damages for defamation, breach of confidence, and misuse of private information. The proceedings were complex and involved multiple issues, including the admissibility of certain evidence and the application of various legal principles. The court was required to determine the appropriate allocation of costs between the parties, considering the substantial success of the plaintiffs and the partial success achieved by the defendants.

The primary legal issue was the allocation of costs given the complex nature of the litigation, where the plaintiffs were substantially successful but the defendants had also attained some measure of success. The court held that because many of the issues were not severable or distinct, it was impossible to precisely assess the proportions of success achieved by each party. Consequently, the court ordered that the defendants pay two-thirds of the plaintiffs' costs, reflecting the overall degree of success achieved by the plaintiffs. The court also considered the findings of misconduct by the primary defendant, noting that while such misconduct was relevant to the costs insofar as it related to the manner in which the litigation was conducted, it did not warrant an order for indemnity costs. The court rejected the plaintiffs' application for indemnity costs, finding that the defendants had achieved a measure of success and that there were no significant cost savings resulting from the late concession by the defendants.

The court further addressed the costs associated with the late joinder of some defendants, who were separately represented. Separate costs orders were made in relation to those defendants. Additionally, the court declined to make an order regarding the costs of preparing an expert report for the plaintiffs, as the report was not tendered and other experts used the information contained within it. The defendants had incurred expense in preparing evidence in response to the report, but the court found no basis to make an order as to those costs.