Pender v Punter Southall Group Limited (Court of Appeal : Appeal (Civil) : Crow, Perry, Wolffe : Costs)

On 5 February 2026, this Court handed down judgment in this appeal, which concerned the valuation of a shareholding in unfair prejudice proceedings ( Pender v Punter Southall Group Limited [2026] JCA 039 ). The appeal involved a wide-ranging attack on the Royal Court's valuation decision. The Appellant succeeded on one Ground of Appeal - namely, Ground 5, which concerned SFA Advance Commission. The Appellant also successfully resisted the Respondent's single Ground of Cross-appeal, which related to the same issue. The Respondent successfully resisted all the other Grounds of Appeal. We now have before us an application by the Respondent for an order - (i) for the costs of the appeal; and (ii) for an interim payment on account of costs. This is the judgment of the Court on that application.

The Respondent's primary position is that he should be awarded the whole of his costs. He points out that the Court did not accept the Appellant's contention that it should itself decide what adjustment to make in respect of the SFA Advance Commission but remitted that issue to the Royal Court. For aught yet seen, the Royal Court may sustain the Respondent's position when it comes to reconsider the matter in light of this Court's judgment. The Respondent's fallback position is that he should be awarded 90% of his costs. He states that 16% of the Court's time was spent on the SFA Advance Commission issue; he says that the outcome on that issue was neutral as between the parties in this Court; and he refers to the relative scale of the written material on that issue against the appeal as a whole.

The Appellant does not resist an award of costs to the Respondent but contends that this should be limited to 60% of the Respondent's costs. The Appellant submits that the SFA Advance Commission issue occupied approximately 20% of the resources expended on the appeal, and supports that by reference to the number of pages in the submissions (26% and 29%) and judgment (16%) concerned with that issue, and its financial significance if the Royal Court is persuaded to accept Mr Cliff's evidence (23%). The Appellant contends that, applying the 20% figures to the SFA Advance Commission issue would result in the Appellant paying 80% of the Respondent's costs (to reflect his success on all other issues), and the Respondent paying 20% of the Appellant's costs (to reflect its success on the SFA Advance Commission issue).

The principles which fall to be applied to awards of costs were summarised by Crow JA, giving the consequentials judgment in Financial Technology Ventures II (Q) LP v. ETFS Capital Ltd [2021] JCA 191 , at [12] -

In the present case, although the Appellant has been partially successful there is no dispute that the circumstances of the case justify an award in favour of the Respondent. The Respondent was successful in resisting an attack on the Royal Court's award in its favour, on all points except as regards the adjustment which the Royal Court made for the SFA Advance Commission issue. We reject the Respondent's application for an award of the totality of its costs. This would not reflect the fact that the Appellant was successful in its appeal, albeit only on the SFA Advance Commission issue, and that the Appellant also successfully resisted the cross-appeal.

Neither party contends for an issues-based costs order. The Respondent's fall-back is for 90% of its costs; the Appellant argues that 60% would be a fair award. We approach the question of the appropriate percentage to award on a broad basis, taking into account the various percentages identified by the parties. We have concluded that the Appellant should be ordered to pay 80% of the Respondent's costs assessed on the standard basis.

The Respondent has presented a Bill of Costs, prepared in support of the application for interim payment. This brings out total fees and disbursements of £311,588.64. Of this total, disbursements account for £118,550.14. The fees element is a standard costs basis summary bill based on hours worked on the appeal at Factor A allowable rates with a Factor B uplift of 50%. The Respondent intimates that he will seek a higher uplift in due course but has applied 50% for the purposes of previous interim payment claims.

We are satisfied that an order for interim payment of costs would be appropriate. We accept the Respondent's application that we should order payment of 50% of the amount brought out in the Respondent's Bill of Costs. 50% is, in the context of this case, an appropriately conservative percentage, which avoids any real risk of overpayment, but falls to be applied, broadly by reference to the award which is limited to 80% of the Respondent's costs. On that basis, we order interim payment of £125,000 payable in 14 days.