When is a successful party entitled to an award of costs?
As many readers will recall, Ed Sheeran was successful in his recent copyright case against Sami Chokri and others, after the judge – Mr Justice Zacaroli – found that Sheeran’s song “Shape of You” had not been copied from Chokri’s “Oh Why”.
The same judge has now published a judgment ordering the defendants to pay Sheeran's costs, with an interim payment of £916,200 (Sheeran & Ors v Chokri & Ors).
The defendants had argued that there should be no order as to costs, even though Sheeran was the successful party, due to his (mis)conduct.
In particular, the defendants argued that by their conduct the claimants had failed to engage in pre-action correspondence, failed to provide disclosure of relevant documents, maintained that failure throughout the litigation, strengthened the defendants’ conviction that infringement had occurred and failed to respond adequately to failings in disclosure.
Claimants not to blame
The judge did not accept any of these arguments. Overall, he found that Sheeran etc was no more at fault than Chokri etc for problems during the case.
In particular, the judge did not accept that the claimants had failed to comply with the Practice Direction – Pre-Action Conduct and Protocols, as they had responded to the defendants’ expert’s report with a clear denial and two expert’s reports of their own: “The commencement of proceedings was a reasonable reaction in circumstances where (as I found in the main judgment) it was fair to see the defendants' conduct as a tactic to extract a settlement.”
On pre-action disclosure, the defendants said the claimants should have disclosed voice memos or other recordings to explain how “Shape” was written. But the judge said:
“I do not accept that there was any obligation on the claimants to go this far, which would have necessitated making the kind of searches required in a full disclosure exercise. The defendants themselves, who were positively asserting infringement, had given no disclosure at all in support of their assertion (which was a critical element of their claim) that the claimants had had access to Oh Why.”
Once proceedings were commenced, the defendants argued that the claimants failed to provide disclosure and explanations regarding the creation of “Shape”. But Zacaroli J said that there were three overarching points:
None of the disclosure/explanations addressed the key issue of whether the claimants had heard “Oh Why”;
The defendants did not alter their approach once they had received the disclosure and explanations; and
The allegation of access to “Oh Why” was not in fact pursued against two of the claimants at trial.
Insofar as the defendants’ complaints were made out, said the judge, they would be remedied by interlocutory costs awards on certain issues and adjustments to be made by the costs judge following a detailed assessment: “My decision is simply that the claimants are entitled to an order for costs in their favour, and that they are entitled to have all of their costs subjected to detailed assessment.”
He then calculated the interim payment due, taking into account the claimants’ total costs and the defendants’ criticisms of them.
This was a high-profile case, with significant costs, so it is not surprising that the defendants sought to challenge the order of costs. However, the judge took a realistic view, recognising that litigation is not smooth and simple.
Taking all the circumstances into account, the judge clearly felt that any errors or oversights made by the claimants were minor and did not affect the result of the case, and hence should not affect their entitlement to a costs award. This does not mean that following the procedure is something that can be avoided but rather that there is a level of judicial pragmatism when it comes to assessing the realities of litigation and the associated costs.