Two recent decisions of Mrs Justice O’Farrell in the Technology and Construction Court (TCC) highlight the costs of litigation, and the importance of their recovery by claimants. Costs are stated to “follow the event”, which means that the claims have to succeed if there is to be any cost recovery.

Many construction disputes, at least initially, are referred to adjudication, which does not allow for any recovery for the costs of a successful referring party. Furthermore, the intention of the TCC Pre-Action Protocol is to encourage dialogue between the parties, leading to early settlement. However, in some instances, litigation is perceived to be unavoidable. The separate cases of Ohpen Operations UK Ltd vs Invesco Fund Managers Ltd (24 September 2019) and Hochtief (UK) Construction Ltd and Volkerfitzpatrick Ltd vs Atkins Ltd (11 November 2019) are illustrative of the litigation costs that may be incurred. The claimants in both cases were successful and recovered their costs, albeit there were challenges to their entitlements. 

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