In England and Wales, in a case governed by the Civil Procedure Rules, what is the position on costs in respect to a split trial, where the first part of the split trial is concluded in the claimant's favour?

For instance, where:

(1) a trial is split into:

(a) a trial on liability; and

(b) a trial on quantum, and

(2) the trial on liability results in a finding in the claimant's favour, 

will/can the Court make a costs order in favour of the successful claimant, immediately after it gives judgment on liability, or should a decision on costs, await the outcome of the trial on quantum as well?  

Helpfully, this issue was comprehensively considered in Rogers v Wills [2025] EWHC 1711 (Ch) ('Rogers'), a decision of HHJ Matthews sitting as a Judge of the High Court), handed down on 7.7.25.

Readers short on time can jump straight to the heading below 'The law - costs of split trials'.

Facts

(1) A claimant issued a claim that:

(a) there existed a contract between the claimant and the claimant's late mother, wherein, the claimant would provide care to her mother, for "a reasonable price" (paragraph 1. That the claimant had provided care to the claimant's late mother, for a period of 2.5 years, prior to the claimant's mother's death (paragraph 1), and so the claimant's late mother's estate was indebited to the claimant, for a sum of money; alternatively,

(b) claimant mother's estate was liable to the claimant, in unjust enrichment, for the value of the care provided.

(2) on the claim, the court directed a split trial. That is:

(a) a trial on liability; and

(b) a trial on quantum - to decide the exact amount to be paid (paragraph 1)

(3) at the trial on liability, the Judge held (judgment reported [2025] EWHC 1367 (Ch)) that the claimant succeeded on liability, on the basis that:

(a) there was such a contract and that the claimant was entitled to a "a reasonable price" (paragraph 1); alternatively, if the Judge was wrong about that,

(b) the claimant was '...entitled to the value of the services rendered by virtue of the doctrine of unjust enrichment.' (paragraph 1)

(4) the claimant then applied for her costs of the trial on liability (i.e. without waiting until after the trial on quantum) (paragraph 2). That is, that '...the defendant pay her costs of the liability trial.' (paragraph 2).

(5) The defendant resisted on, essentially, on two bases. The defendant contended that:

(a) 'First... the decision on costs can only be taken after the quantum trial is over, because there is a possibility that the overall "winner" for costs purposes is the defendant rather than the claimant.' (paragraph 2)

(b) 'Second...there may have been "without prejudice" communications between the parties, and the judge cannot know about those until after the quantum trial is concluded.' (paragraph 2)

The law - general rule on costs 

In Rogers, the Judge said, at paragraph 3:

'The rules about costs generally are well known. I can summarise them for present purposes by saying that costs are in the discretion of the court (CPR rule 44.2(1)), but, if the court decides to make an order, the general rule is that the losing party, the unsuccessful party, will pay the costs of the successful (CPR rule 44.2(2)(a)). However, that is subject to the proviso that the court may make a different order (CPR rule 44.2(2)(b)). So, the operation of the general rule usually requires the court to establish which is the successful and which the unsuccessful party. But in exercising its discretion the court will take into account the parties' conduct, their relative success and any admissible offer to settle (CPR rule 44.2(4)).'

The law - costs of split trials

Under the heading 'Costs of split trials', the Judge undertook a comprehensive survey of the law, referring to 3 authorities:

(1) Weill v Mean Fiddler Holdings Ltd [2003] EWCA Civ 1058 ('Mean Fiddler'); 

(2) Fluor Ltd v Shanghai and Zhenhua Heavy Industries Ltd [2016] EWHC 2500 (TCC) ('Fluor'); and 

(3) Langer v McKeown [2021] EWHC 451 (Ch) ('Langer').

It is an extensive survey, but it is convenient to set it out in full. At paragraphs 4 to 16, the Judge in Rogers said:

'Here the case is complicated by the fact that the litigation has been divided into two separate stages, liability and quantum. This is a so-called "split trial". Each of the two stages is self-contained, and has its own procedural steps, such as disclosure, preparation of witness statements, preparation of expert reports and finally trial. When the liability trial was prepared and heard, there was no certainty that there would ever be a quantum trial.

Were the matter free from authority, I should be inclined to treat each as a separate piece of litigation, and decide the question of costs separately for each. This is because the parties engage in only one part of the litigation, and risk only the costs of that part, at a time. By merely entering on the first stage, they do not risk the costs of any further stage. At the end of the first stage, the costs of that part can be dealt with, without having to be concerned about any costs which fall under the second part. After all, that second part may never happen. This is in stark contrast to the case of a trial of both liability and quantum. In such a case the parties risk the costs of everything at the same time, in a single, continuous piece of litigation. In such a case it is right to deal with the costs of the whole litigation in a single exercise.

Mean Fiddler

But the matter is not free from authority. I have been referred to two authorities at first instance, both of which refer to a third at appellate level. So, I should begin with the third case. This was Weill v Mean Fiddler Holdings Ltd [2003] EWCA Civ 1058. In that case there was a trial on liability, in which the claimant was successful. But the judge declined, as a matter of discretion, to make an immediate order for costs in favour of the claimant in respect of the liability trial, and postponed any such order until after the trial of the remaining issues. The claimant appealed. Lightman J (with whom Ward and Tuckey LJJ agreed) said:

"32. … with some hesitation I reach the conclusion that on this appeal it is not possible to say that the Judge's decision was clearly one which he was not entitled to reach."

Lightman J explained his reasoning thus:

"33. The fact that only nominal damages are awarded after a single trial of the issues of liability and damages in the circumstances of a particular case may constitute grounds for refusing the claimant his costs or his full costs of the issue of liability. There is much to be said for the view that the incidence of costs should be the same whether or not for case management reasons there has been an order for a split trial and whether or not the order for a split trial was made on the initiative of the claimant or the defendant. If this is so, in the case where there is a split trial and it is left uncertain until conclusion of the trial on quantum whether the claimant will recover more than nominal damages, it may be proper for the trial judge to defer making any order for the costs of the trial of the issue of liability until the final outcome of the action is known. This may be the case whenever the judge considers that there is a real possibility that the outcome of the assessment of damages may affect the merits of the parties' entitlement to the costs of the issue of liability. If the Judge forms the view that it does, he must consider carefully whether justice to the defendant requires him to postpone any decision on costs until the final outcome of the action is known. I do not think that the Judge's decision in the exercise of his discretion to follow this course in this case and postpone the decision on costs can or should be disturbed."

Fluor Ltd

Mean Fiddler was cited in the second case, Fluor Ltd v Shanghai and Zhenhua Heavy Industries Ltd [2016] EWHC 2500 (TCC), a decision of Edwards-Stuart J. In this case the claimant had succeeded at the trial on liability, although by no means on the whole of its claim. It sought its costs of the liability trial. The defendant resisted this, and sought to postpone the question of costs until after the trial on quantum, although it did not suggest that damages would be nominal or in an amount that could be regarded as de minimis. The judge said that

"13. … before deciding what order to make there are two factors that I should bear in mind. First, it is clear that if I consider that the circumstances warrant it I can properly conclude that the costs of the liability trial should be deferred until all the issues relating to quantum have been determined: see Weill v Mean Fiddler Holdings [2003] EWCA Civ 1058; Shepherds Investment Limited v Andrew Walters [2007] EWCA Civ 292. Second, the fact that there has been a split trial of liability and quantum should not affect the decision."

The judge then set out most of the passage from the judgment of Lightman J already quoted above.

Langer – first instance

Mean Fiddler was also cited in the third case, Langer v McKeown [2021] EWHC 451 (Ch). This was also a case in which there was a split trial, although here the claim was a petition under section 994 of the Companies Act 2006 (conduct unfairly prejudicial to a member of a company). The first part, concerning the question whether there had been conduct unfairly prejudicial to the petitioner, and the question of the remedy to be awarded, had been tried. The petitioner had been successful, and had obtained an order that her shares be bought out, but at a valuation to be determined. The second part of the litigation (determining the valuation) was yet to take place. The petitioner sought her costs of the first stage. The deputy judge (Nicholas Thompsell, as he then was) considered the decision in Mean Fiddler, quoting from the judgment of Lightman J, and summarised it by saying that

"14. … the normal position is that the trial judge should make a payment for costs at this stage but the judge has discretion not to."

The petitioner made submissions in favour of an immediate costs order. the deputy judge said:

"16 … I find those points persuasive having regard to the principle enunciated in Phonographic. Even if the Respondent is successful at the next stage in showing that the valuation to be placed on the shares is much lower than expected, the fact remains that the Petitioner has been put to considerable effort, expense and delay through the Respondent taking points in relation to liability which have proved to be without merit and the Petitioner, in such circumstances, should be entitled to her costs in relation to this stage of the proceedings.

17. I take the view then that, subject to any other considerations, it is open to me to award costs at this stage and that I should do so."

He then went on to take into account an earlier open offer to purchase the petitioner's shares for £25,000. However, the deputy judge concluded that

"24. … it is highly unlikely that [the petitioner's] ultimate recovery at the next stage will leave her in a lesser position than she would have been had she accepted the £25,000 offers when they were made and I do not think that the small prospect of that happening is a good enough reason to overturn the normal principle that she should be entitled to her costs at this stage."

Then the deputy judge dealt with an offer suggested to have been made without prejudice save as to costs (a Calderbank offer), though he was not told which party had made the offer or what its terms were, except that it was not an offer complying with the terms of CPR Part 36. The petitioner wished to put the relevant correspondence before the court. The respondent opposed this. The deputy judge said that

"30. … I do not think that the Respondent is entitled to have it both ways by withholding admission of the evidence of the offer but still asking the court to take account of it."

The deputy judge went on to conclude that the offer was inadmissible, and said that

"33. … Even if it were open to me to consider an inadmissible offer to settle, I do not know how I would consider it. So I think that I should ignore this offer to settle in making the order today and I see no reason for delay. I propose to make an award of costs now and for costs to be assessed, if not agreed, at the earliest convenience of the court."

Langer – on appeal

The respondent to the petition in Langer was refused permission to appeal against the liability judgment. But he did succeed in obtaining permission to appeal against the costs judgment, albeit on a narrow point, concerning the impact of offers without prejudice save as to costs as compared with that of Part 36 offers. In fact, the deputy judge's approach to the costs question was upheld, and the appeal failed: [2022] 1 WLR 1255. Despite the narrowness of the point actually in play, Green LJ (with whom Lewison and Nugee LJJ agreed, made some general points about the principles informing costs orders.

These included the following:

"37. … there is a general 'salutary' rule that costs follow the issue rather than the 'event'. This is because an overly robust application of a principle that costs should follow the final event discourages litigants from being selective as to the points they take in litigation and encourages an approach whereby no stone or pebble, howsoever insignificant or unmeritorious, remains unturned: Phonographic (ibid page [1523A]); Mean Fiddler Holdings Limited (ibid paragraph [30]); and Merck KGaA v Merck Sharp & Dohme Corp & Ors [2014] EWHC 3920 (Ch) ("Merck") where Nugee J (as he then was) stated at paragraph [6]) that it was "… in general a salutary principle that those who lose discrete aspects of complex litigation should pay for the discrete applications or hearings which they lose, and should do so when they lose them rather than leaving the costs to be swept up at trial". [Emphasis in original.]

38. Secondly, the making of discrete issue-based costs orders encourages professionalism in the conduct of litigation, which is an objective sought to be achieved by the Overriding Objective in CPR 1.1 and 1.2 and which parties are under a duty to facilitate pursuant to CPR 1.3.…

39. Thirdly, the principle of equality of arms plays a part … An inequality of arms can be manifested in a variety of different ways, such as in an asymmetry of information as between the parties … In some types of litigation, of which minority shareholders' suits might be an illustration, a claimant may be poorly placed to assess the reasonableness of an offer to settle not being in possession of the internal financial documents of the company … It is consistent with the above considerations that costs rules should encourage the making of reasonable offers to settle such that a refusal by a litigant to accept a reasonable offer can militate against the making of a costs order in the successful party's favour … "

Conclusion on the law

In my judgment, in the light of these authorities, the decision to make or not make a costs order is an exercise of judicial discretion, but the general policy of the costs rules is to deal with the costs of discrete applications or parts of the litigation as they are concluded, as Nugee J said in the Merck case, quoted by Green LJ above. There will be cases however where that may not happen, because there is, in the words of Lightman J, "a real possibility that the outcome of the assessment of damages may affect the merits of the parties' entitlement to the costs of the issue of liability". For example, the judge may consider that the claimant who has won on liability may not obtain anything, or at any rate any more than a nominal sum, when it comes to quantum, and, if the whole litigation had been fought in one go, that would usually mean that the successful party for the purposes of the general rule was the defendant. In other words, those are cases where what happens at the quantum stage affects the costs of the liability stage, because of a policy – or apparent policy – that there should be no overall difference between costs of a case tried in stages and the costs of a case tried all together.' [subheadings (underlined) are in italic in original]

The Judge in Rogers then said, at paragraph 17:

'In the present case I have held that the claimant made a contract with her mother to provide care services "for a reasonable price". Whatever that price is, it will not be nothing, or purely nominal. It will be more than that. The claimant's claim in her claim form was for £135,000. In my decision on liability I found (at [137]) that the defendant had set aside £150,000 of the estate's funds to cover the costs of the deceased's care. In his letter to the claimant dated 9 September 2020 the defendant accepted that she "should receive compensation" for her care of the deceased. The only difficulty was to quantify the amount. In my judgment it is not appropriate to wait until the quantum stage is concluded. The costs of the liability stage should, subject to any other countervailing considerations, be dealt with now.'

Offers to settle

In Rogers, the Judge, under the heading 'Offers to settle', said, at paragraphs 18 to 20:

'The only other countervailing consideration put forward by the defendant is that relating to possible offers to settle. CPR rule 44.2(4) refers to admissible offers to settle. Part 36 contains a separate regime for offers which fulfil stringent criteria. It is not relevant here. Unlike the deputy judge in the Langer case, who was told that there had been a Calderbank offer made, I have not even been told that. All I have been told is that there may have been "without prejudice" communications between the parties. In the Langer case, as noted above, the deputy judge ignored the Calderbank offer of whose existence (but not terms) he knew, on the basis that it was inadmissible, as he had no information about it.

In the Court of Appeal, Green LJ said:

"32. In the present case the parties agreed that the offer at that stage in the litigation could not be looked at and this was the basis for the appellant's argument that the entire exercise should be deferred. On the express terms of CPR 42.2 a judge is entitled to conclude that an offer should not be taken into account yet proceed to make an interim order.

[…]

35. I agree with [the judge's] analysis. The appellant's submissions turn the language of CPR 44.2 upon its head. It entails the proposition that a Calderbank offer that is prima facie inadmissible: (i) becomes admissible; and (ii) acquires such compelling probative value that it ousts all the considerations that are otherwise required to be taken into account under CPR 44.2(4); and (iii) leads (subject only to exceptional circumstances) to a decision not to make any immediate costs order … The appellant's submissions lead to these conclusions even though the court remains ignorant of the terms of the offer and whether, had it been disclosed, it would have made any difference to the outcome. The appellant's submission is, in my view, inconsistent with the clear and express language of CPR 44.2."

In my judgment, the claimant's position in the present case is stronger than was that of the petitioner in Langer. I do not even know that there have been any offers, only that there may have been without prejudice communications. Just as the deputy judge in Langer was entitled to decide whether to make a costs order in respect of the liability trial without being fettered by a Calderbank offer, so too I consider that I am able to make such a decision when I do not even know that there have been any such offers. So far as I am concerned, there is no admissible offer to settle which I can take into account.'

On the facts

On the facts in Rogers, the Judge concluded, at paragraph 21, that, in respect to the trial on liability, he '...should make a costs order in respect of the costs of that trial'[1].

SIMON HILL © 2026*

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33 BEDFORD ROW

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