British Nuclear Group Sellafield Ltd v Kernkraftwerk Brokdorf GmbH & Ors

MR JUSTICE BRIGGS: This is a case in which the defendants succeeded on the rigorous technical review issue but not, by any means, on all points in the argument; but they nonetheless obtained what they came seeking to obtain on that issue.

The claimant won, as is acknowledged, fairly and squarely on the Magnox prioritisation issue. In relation to the accounting issue, much of it was compromised pre-trial. The largest individual part remains in issue and has had to be adjourned. The claimant won on certain points of construction and on the ‘wider review’ issue and I have already concluded that it is not impracticable for the court to make a proportionate overall costs order.

The basis upon which I have approached this is, first, to ascertain what proportion of the total burden (including, of course, the costs burden of this trial) is represented by those three issues. I have been greatly assisted in that respect of by the two tables which the claimant provided in its skeleton argument and I have adopted the ‘court timetable’ as what seems to me to be the best estimate of those proportions.

I have rounded the percentages found in that table. I have taken a little off the time which appears to have been taken for the accountancy issue and reduced it to 10 per cent and I have added 1 per cent to each of the RTR and Magnox prioritisation percentages to bring that table more precisely in accordance with my own perception of the true costs burden attributable to those three issues. The percentages which I have, therefore, used are 68 per cent for the rigorous technical review issue, 22 per cent for the Magnox prioritisation issue and 10 per cent for the accounting issue.

If I had made a separate issue costs order in relation to the rigorous technical review issue, I would have ordered the claimants to pay 80 per cent of the defendants’ cost and the defendants to pay 20 per cent of the claimant’s costs. My reason for that conclusion is that, although it might be said that the defendants succeeded upon one of a large number of arguments and lost on a large number of others, all the evidence, in my judgment, was relevant to my assessment of the question whether the BNFL judgment as to capacity was reasonable, save in the stochastic modelling aspect of the case. My judgment on costs also takes into account the starting point, which is that on this issue the defendants were in fact wholly successful.

Had I made an individual issue order for costs in relation to the Magnox prioritisation issue, I would simply have ordered the defendants to pay 100 per cent of the claimant’s costs of that issue to reflect the straightforward outcome of that issue.

In relation to accounting, had I been making a separate issue order as to costs of that issue, I would have ordered that the costs of that issue be reserved. My reasoning is that, although a lot of time had to be spent on understanding and deciding certain issues about the contractual method for accounting provided for in the parties’ agreement, as to part of which, it is fair to say, the claimant succeeded, the monetary outcome of the accounting issue still depends heavily on the outcome of the Cogema aspect, which has had to be adjourned. It follows, in my judgment, that it would not be just at this stage to make an order for costs of the accounting issue while that remains outstanding. I have been able to reflect that view in an overall proportionate costs order simply by reserving 10 per cent of each side’s costs to date.

The result of my calculations, that is by applying the percentages which I have indicated (i.e. the percentage weightings for each issue) to the orders which I would have made if I had made issue-based orders is as follows. Overall the claimant must pay the defendant 54.4 per cent of its costs to date; that is by reducing an 80 per cent costs order on the rigorous technical review issue by the 68 per cent weighting given to that issue. The defendant must pay the claimant 35.6 per cent of the claimant’s costs to date; that is 13.6 per cent on account of the rigorous technical review issue and, of course, 22 per cent on account of the Magnox prioritisation issue.

I have asked myself, having looked at those two percentages, whether that produces a fair result and tested it on a purely hypothetical assumption that both sides have spent £1 million recoverable; that is as standard basis costs to date. On my calculations, that produces an outcome under which the claimant’s costs liability so far, taking into account its obligation to pay 54.4 per cent of the defendants’ costs and 54.4 per cent of its own costs, bearing in mind that 10 per cent had been reserved, is £1,088,000. The defendants’ liability so far, taking into account its need to pay 35.6 per cent of its own costs and its obligation to pay 35.6 per cent of the claimant’s costs, is, on my calculation, £712,000. The addition of those two items leaves £200,000 left over of an overall £2 million costs burden which I have caused to be reserved; being 10 per cent of the overall burden attributable to the accounting issue.

In my judgment, that outcome in relation to the costs to date is a fair one overall and that is the order which I propose to make.