Meet Bob. Bob owes Alice £800, which she sues him for. The court affirms the validity of the debt and agrees to enforce it, however, Bob counterclaims £1200 from Alice on which he also prevails, making the net debt effectively negative which Alice must pay him £400.

What is likely to be the costs order?

Now what if instead of £1200, it was rather £760 that be triumphantly counter claimed against Alice? He would still owe £40 but that would have likely fallen under de minimis or not been worth litigating for, or at least might have put it onto another track with lower costs. Is Bob due any legal costs for being dragged all through court from Alice?

  • Well to be honest I am interested in how the principle illustrated by the scenario would affect each track/band including and beyond small claims. Oct 6, 2022 at 22:37
  • If A Sue’s B, and B counter sued A, for about the same amount, it is entirely possible that one wins and one loses (four combinations) so the judge still needs to decide.
    – gnasher729
    Oct 7, 2022 at 7:25

1 Answer 1


The costs order is in the court’s discretion and will depend on all of the circumstances. Rule 44.3 of the Civil Procedure Rules relevantly provides:

(4) In deciding what order (if any) to make about costs, the court must have regard to all the circumstances, including …

(b) whether a party has succeeded on part of his case, even if he has not been wholly successful; and

(c) any payment into court or admissible offer to settle made by a party which is drawn to the court’s attention …

(5) … (b) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;

(c) the manner in which a party has pursued or defended his case or a particular allegation or issue; and

(d) whether a claimant who has succeeded in his claim, in whole or in part, exaggerated his claim.

(6) The orders which the court may make under this rule include an order that a party must pay—

(a) a proportion of another party’s costs …

(f) costs relating only to a distinct part of the proceedings …

In the circumstances you describe, the court may well order that Bob pays the costs of Alice’s claim, and Alice pays the costs of Bob’s counter-claim. Whether any net amount is payable would depend on which part of the case occupied the most court time. But such an order might be inappropriate if the case was run in such a way that it was difficult to allocate costs to one side or another.

As noted in CPR 44.3(4)(c), settlement offers are also relevant. In your second example, suppose that Bob agreed before the hearing that he was liable to pay the net amount of £40, but Alice demanded full payment. This factor would count strongly in favour of ordering Alice to pay Bob’s costs even though the final outcome was a judgment against him.


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