Sutton v Hunter (No 2)

Sutton v Hunter (No 2) involved a dispute between the plaintiff, Sutton, and the defendant, Hunter. The primary judgment had already been delivered, with Sutton being successful. The matter before the court was to determine the appropriate costs order, specifically whether Sutton should be allowed to recover the costs of an expert’s evidence deemed inadmissible, and whether the claim fell within the District Court or Supreme Court jurisdiction. Additionally, the court needed to consider whether Sutton should receive a proportion of her costs from Allianz, the second defendant.

The court considered the general principles governing costs in civil proceedings, particularly the appropriateness of apportioning costs based on the time spent on various issues. It was noted that such orders often aim to avoid the inutility and expense of dividing legal fees. However, the court also recognised that percentage apportionment involves an evaluative element based largely on impression, where the court lacks detailed information about the preparation time and effort for each issue. The court found that an order could be crafted to exclude specific aspects of costs, which would not be difficult to assess and would fairly reflect the circumstances of the case.

In crafting the order, the court decided that the second defendant, Allianz, should pay Sutton's standard costs on the District Court scale. However, this order excluded the costs of the application to transfer the proceeding from the District Court to the Supreme Court and the fees and expenses related to the expert reports of Vincents, including costs associated with obtaining those reports and preparing and leading that evidence.

The court’s final order was that the second defendant, Allianz, pay the plaintiff’s costs on the District Court scale, excluding the costs of the transfer application and the fees and expenses related to Vincents’ expert reports. This decision aimed to balance the need for a fair costs order with the practical considerations of assessing legal fees in complex litigation.