FEDERAL COURT OF AUSTRALIA

Richardson v Oracle Corporation Australia Pty Limited (No 2) [2013] FCA 359

THE COURT ORDERS THAT:

1.    In respect of the proceedings generally and subject to the following orders:

1.1    The first respondent pay the applicant’s costs on a party and party basis up to 11:00 am on 4 September 2010, such costs to be taxed if not agreed.

1.2    The applicant pay the first respondent’s costs of the proceedings on an indemnity basis from 11:00 am on 4 September 2010.

1.3    The applicant pay the second respondent’s costs of the proceedings on an indemnity basis from 11:00 am on 4 September 2010 to 16 May 2012 and such professional costs (if any) as were incurred thereafter.

2.    In respect of the applications for costs:

2.1    The interlocutory application filed by the applicant on 6 March 2013 is dismissed with costs.

2.2    The first respondent pay the applicant’s costs of the hearing on 5 April 2013.

2.3    The applicant otherwise pay the respondents’ costs (if any, in the case of the second respondent) of the applicant’s application for costs, the first respondent’s application for costs and the second respondent’s application for costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

Background to present judgment

1    On 20 February 2013, orders were made awarding the applicant (“Ms Richardson”) $18,000 by way of damages as compensation for breach of s 28B(2) of the Sex Discrimination Act 1984 (Cth). Her application, which was filed on 9 June 2010, was otherwise dismissed (Richardson v Oracle Corporation Australia Pty Limited [2013] FCA 102) (“the primary judgment”).

2    The order for damages was made only against the first respondent (“Oracle”) for the reason that, as recorded at [245] of the primary judgment, on the last day of the hearing, counsel for Ms Richardson indicated that if Oracle was found to be vicariously liable for the conduct of the second respondent (“Mr Tucker”), no monetary relief was sought against Mr Tucker. As was indicated by the primary judgment, the amount which Oracle was ordered to pay was the amount to which Mr Tucker would have been liable (jointly or severally) had an order for damages been pressed against him.

3    The analysis in the primary judgment explained why no case for economic loss was made out and no damages for economic loss were awarded. The damages for non-economic loss which were awarded were based upon an analysis in which no damages were found to be justified for a number of allegations made against Oracle. Apart from the question of vicarious liability for Mr Tucker’s conduct, Oracle was found not to have breached any legal right of Ms Richardson, or any duty owed to her, which gave rise to a cause of action against it independently of its vicarious liability for Mr Tucker’s conduct. Specific claims for a public apology from Oracle and that Oracle implement suggested new policies and practices with respect to sexual harassment were also rejected.

4    At the hearing, Ms Richardson and Oracle sought an opportunity to make further submissions about costs. The primary judgment therefore did not deal with costs. When judgment was delivered, directions were made that any special order for costs (i.e. other than an order that Oracle pay Ms Richardson’s costs as taxed if not agreed) be filed by 4.00 pm on 6 March 2013, together with any additional evidence relied on in support of the order sought. Further directions were made for evidence in reply and written submissions about costs. The directions indicated that the question of costs would be dealt with thereafter on the papers.

5    It became necessary to have a short oral hearing on 5 April 2013 to deal with some questions concerning the admissibility of evidence, but otherwise consideration of the matters which are referred to below has proceeded by reference to the evidence and submissions filed in writing.

The applications for costs

6    By 6 March 2013, each party had filed an application for a special order for costs. Oracle and Mr Tucker supported their applications with documentary evidence. Ms Richardson also made an application for a particular order concerning Mr Tucker to which I shall refer below. No evidence was filed initially in support of that application, but later two affidavits were filed, one from Ms Richardson and one from Ms Rania Jones, solicitor.

7    Oracle asked that its obligation to pay any costs to Ms Richardson be limited to costs up to 4 or 5 September 2010, which costs should be assessed on the basis that they be reduced by one third, or by two thirds, for reasons I shall explain later. Oracle sought that Ms Richardson pay its costs thereafter on an indemnity basis. As an alternative, Oracle sought that Ms Richardson pay its costs on an indemnity basis from 23 or 28 December 2011, with Oracle paying Ms Richardson’s assessed costs on a reduced basis up to that time.

8    Mr Tucker was legally represented and assisted until 16 May 2012, at first through solicitors retained by him and later through direct instructions to counsel. Thereafter he appeared for himself. Mr Tucker’s application for costs (in the form in which that application was filed electronically) sought only an order that Ms Richardson pay his professional costs on an indemnity basis from 4 September 2010 but, as explained below, that electronically filed application may have been incomplete.

9    Ms Richardson’s application was that if any costs order was made in favour of Mr Tucker, then any costs order which was made in her favour (as is contemplated by Oracle, for example) be made jointly and severally against both Oracle and Mr Tucker. This application departed from the position announced on the final day of hearing. The application now made by Ms Richardson, that Mr Tucker also be liable for her legal costs, appears designed to allow her to seek some form of financial contribution from Mr Tucker. That could not lead, in my view, to any increase in the costs which Ms Richardson might obtain. Oracle has not sought that any contribution be ordered against Mr Tucker. I see no reason why Ms Richardson should now be permitted to depart from the position which was announced on the final day of the hearing. I can see no purpose to be served in now making an order that Mr Tucker be jointly and severally liable for costs. I would certainly not make such an order if it was intended that it might operate as some form of punishment. Costs are not generally awarded as a punishment.

Offers of settlement

10    The evidence which was filed by Oracle and by Mr Tucker on their present applications for costs revealed a course of offers of settlement of the proceedings which would have provided Ms Richardson with an outcome more favourable than the outcome she obtained from the primary judgment and the orders made pursuant to it. That history reveals the matters which are set out below.

11    On 3 September 2010, solicitors for Oracle and Mr Tucker, acting jointly, made the following offer of compromise to Ms Richardson:

1.    This is an offer of compromise made by the respondents pursuant to Order 23 of the Federal Court Rules.

2.    Without prejudice and without any admissions, the respondents offer to compromise the whole of the proceedings by payment to the applicant of the sum of $55,000 plus interest.

3.    The respondents offer to pay the applicant’s costs of this proceeding as agreed between the parties or as assessed.

4.    This offer is open for acceptance by the applicant until the expiration of 14 days from the date that it is made.

12    As the offer was about to expire, solicitors for Ms Richardson sought an extension of the offer for a further week. The respondents declined to extend the offer. It evidently lapsed in accordance with its terms. On 20 September 2010, solicitors for Ms Richardson made a counter offer on her behalf in the following terms:

1.    This is an offer of compromise made by the Applicant pursuant to Order 23 of the Federal Court Rules.

2.    The Applicant offers to compromise the whole of the proceedings by:

a)    payment by the Respondents to the Applicant of the sum of $106,500 plus interest;

b)    payment by the Respondents to the Applicant of the Applicant’s costs of this proceeding as agreed between the parties or as assessed.

3.    This offer is open for acceptance by the Respondents until the expiration of 14 days from the date that it is made.

13    One feature of this offer should be noted. It offered, as had the offer from the respondents, to compromise the whole of the proceedings in return for the payment of a stated sum plus interest and costs. In other words, the medium of exchange was monetary. The offer was not accepted by the respondents.

14    During May 2011, the respondents were served with the evidence on which Ms Richardson then proposed to rely. During July 2011, the first respondent served its evidence on Ms Richardson’s solicitors.

15    On 11 July 2011, solicitors then acting for Mr Tucker made a separate offer (a “Calderbank” offer) to settle the proceedings against Mr Tucker. Mr Tucker offered to pay Ms Richardson $25,000 in return for withdrawal of the sexual harassment claim and his release from the proceedings, with no order as to costs against him being made. The letter which conveyed the offer advanced a detailed argument to the effect that many of the complaints made by Ms Richardson, upon which the expert evidence of Dr Jonathan Phillips depended, concerned the conduct of Oracle and its staff, rather than simply any allegations of sexual harassment by Mr Tucker. This is an argument which found substantial reflection in the discussion in the primary judgment. At this point, Ms Richardson’s claim for general damages for a range of causes of action including (but not confined to) sexual harassment was apparently $40,000. Mr Tucker’s solicitors argued that “a payment of $25,000 to Ms Richardson represents a significant and genuine compromise of the Sexual Harassment Claim” without it preventing Ms Richardson from pursuing her remaining claims against Oracle. By letter dated 15 July 2011, Ms Richardson’s solicitors rejected Mr Tucker’s offer. At the same time, it advised Mr Tucker’s solicitors that Ms Richardson’s legal costs to that date (including costs associated with a complaint to the Australian Human Rights Commission) were $161,988.57.

16    Mr Tucker served his evidence and amended defence on 2 September 2011. On 22 November 2011, the parties attended a court assisted mediation. What transpired at the mediation remains confidential and no party has referred to it in their evidence. By a “notice of offer to compromise” dated 21 December 2011, the solicitors for Oracle and Mr Tucker in his own right jointly made a further offer of compromise to Ms Richardson’s solicitors in the following terms:

To the Applicant,

The First and Second Respondents offer to compromise this proceeding.

The offer is $85,000.00.

This offer is exclusive of costs.

This offer of compromise is open to be accepted for fourteen days after service of this offer of compromise.

The amount of the offer will be paid within twenty-eight days after acceptance of this offer.

This offer is made without prejudice.

17    On 24 January 2012, the offer was rejected by Ms Richardson’s solicitors. One reason given for rejecting the offer was that it did not address the full range of relief sought. Two matters in particular were referred to: first, the claim for an apology from Oracle and secondly, the claim for implementation of altered policies and practices with respect to sexual harassment by Oracle. The monetary offer was also said to be “significantly inadequate”.

Matters to be taken into account in evaluating the offers

18    It is convenient at this point to say something about evidence given by Ms Richardson, in her affidavit of 13 March 2013, that public vindication of her position was important to her and that her rejection of the offers should not be assessed only by reference to the amount of money involved. Something should also be said about the relevance of Ms Richardson’s obligations to meet the costs of the services of her own solicitors.

19    I accept, as Ms Richardson suggests, that the findings made in the primary judgment provide some solace to her, but it is important to emphasise that public vindication of this nature, or admission of liability by either of the respondents, was not a feature of any of the offers of compromise. It was not a requirement stated by Ms Richardson in the offer of compromise made by her on 20 September 2010. In the proceedings on 5 April 2013, it was accepted by counsel for Ms Richardson that her position as reflected in her offer of compromise on 20 September 2010 (that she would be prepared to settle the proceedings for an adequate monetary sum) was one on which the respondents were entitled to rely in connection with their present applications for costs. Moreover, for reasons given in the primary judgment, in due course Ms Richardson was found not to be entitled to any relief involving an apology or the imposition on Oracle of altered procedures with respect to sexual harassment. In those circumstances, I can give no weight to the suggestion in the letter of rejection on 24 January 2012 that the offer dated 21 December 2011 did not address the full range of relief sought. On the other hand, the reference in the letter dated 24 January 2012 to the offer being thought inadequate in monetary terms appears to me to capture the real position. However, it is necessary to distinguish between the adequacy of an offer addressed to a claim for monetary relief in proceedings and the different question of the overall financial outcome of the proceedings after solicitors’ bills have been paid.

20    Ms Richardson’s assessment (or that of her solicitors) of the adequacy of the amount offered by the respondents on 21 December 2011 appears to have been significantly affected by the exposure which by that time Ms Richardson had to the legal costs due to her own solicitors. A similar conclusion arises from the affidavit of Ms Rania Jones. By 21 December 2011, Ms Richardson’s costs in relation to the proceedings in this Court were said to have been $224,475.80 (inclusive of GST). The result, so it was said, of accepting the offer then made would have been that if Ms Richardson recovered 60% of her costs on taxation she would still owe her solicitors $22,287.75 (inclusive of GST) and have nothing for herself. That picture is a very disturbing one. At this point, whatever the merits of Ms Richardson’s claims, the proceedings would have been conducted solely for the financial benefit of her lawyers.

21    However, this disturbing state of affairs does not appear to me to provide a reason to introduce any element concerning the obligation Ms Richardson may have had to her own solicitors into my own assessment of the reasonableness of the offer dated 21 December 2011, or earlier offers. Nor is it my task to form even a preliminary view about the apparent justification for legal costs of the order disclosed by Ms Jones’ affidavit. The present task is to assess the consequences of the offer made when compared with the final outcome secured by Ms Richardson in the proceedings. There are a number of offers of compromise to consider. I propose to work backwards through them.

Assessment of the claims for indemnity costs

22    The Federal Court Rules 2011 (Cth) (“the Rules”) came into effect on 1 August 2011. They apply to a proceeding started in the Court on or after that date. The present proceeding was commenced before that date. The Rules also apply to a step in a proceeding started before 1 August 2011 if the step is taken after 1 August 2011, subject to a power in the Court to order that the former rules apply with or without qualification to such a step. In the present case I can see no reason why the Rules should not apply when I consider the offer of compromise made after 1 August 2011. The Federal Court Rules 1979 (Cth) (“the former Rules”) will apply to consideration of any step taken prior to that date.

23    Rule 25.14(1) provides:

25.14(1) If an offer is made by a respondent and not accepted by an applicant, and the applicant obtains a judgment that is less favourable than the terms of the offer:

(a)    the applicant is not entitled to any costs after 11.00 am on the second business day after the offer was served; and

(b)    the respondent is entitled to an order that the applicant pay the respondent’s costs after that time on an indemnity basis.

21 December 2011 offer

24    Ms Richardson has argued that the offer dated 21 December 2011 did not comply with the Rules. The argument was based on Rule 25.03(1) which provides:

25.03(1)    The notice must state whether:

(a)    the offer is inclusive of costs; or

(b)    costs are in addition to the offer.

25    Ms Richardson’s contention was that, as the offer said it was exclusive of costs it did not comply with either of r 25.03(1)(a) or (b).

26    The New South Wales Court of Appeal has taken the view that a statement that an offer is “exclusive of costs” means that it does not address the question of costs (see Old v McInnes [2011] NSWCA 410 (“Old”), per Beazley J at [17]-[18], per Meagher J (with whom Giles J agreed) at [105]). This approach is based on the provisions of the Uniform Civil Procedures Rules 2005 (NSW) (“the UCPR”). Rule 20.26(2) of the UCPR requires (generally) that “an offer must be exclusive of costs”. Under r 42.13A of the UCPR, a specific costs regime is then provided where offers are made, except where a court otherwise orders. The NSW Court of Appeal has taken the view that a stipulation, in an offer under the UCPR, about payment of costs would undermine the costs regime established by the UCPR and be contrary to the requirement that an offer be expressed to be exclusive of costs (see the discussion in Dean v Stockland Property Management Pty Ltd (No 2) [2010] NSWCA 141 (“Dean”) at [16] to [29]; see also Vieira v O’Shea (No 2) [2012] NSWCA 121 at [7]). By contrast, under the Rules applying in this Court it is open to specify that an offer is inclusive of costs. The alternative is that costs are in addition to the offer. In those latter circumstances, the Rules stipulate the way in which costs are to be awarded, to whom and on what basis (see rr 25.12 and 25.14).

27    It may well be that, in this Court, an offer which was made conditional upon acceptance of a proposal about the treatment of costs which departed from the stipulations in r 25.12 and/or r 25.14 could not be regarded as an offer made under the Rules, even if it was expressed to be so made. That would create the sort of difficulty which has led to the strict approach taken by the NSW Court of Appeal. However, no such concern arises in relation to the offer dated 21 December 2011.

28    Rule 25.01(1) provides:

25.01(1) A party (the offeror) may make an offer to compromise by serving a notice, in accordance with Form 45, on another party (the offeree).

29    The notice of offer to compromise dated 21 December 2011 was endorsed with a reference to Form 45 and r 25.01(1). It is clear, therefore, that it was purportedly made under the Rules. In every respect but one the offer conformed to the template in Form 45 provided by the Rules. The exception was that where the template provided room for election between “This offer is [inclusive of/in addition to] costs” the offer said “This offer is exclusive of costs”.

30    In my view, in context there was no uncertainty about what was proposed in relation to costs, or any suggestion detracting from the way in which costs would be treated under the Rules. It is sufficiently apparent, in my view, that the offer was not inclusive of costs, and that any payment of costs would be in addition to the offer. The reasons which have persuaded the NSW Court of Appeal to insist on adherence to offers being exclusive of costs do not operate to give that term a meaning, in the context of the Rules of this Court, which supports Ms Richardson’s argument that the offer was ineffective for the purpose of r 25.14. Rule 25.14 therefore applies unless an order to the contrary is made.

31    It is not strictly necessary to consider whether the offer dated 21 December 2011 should be treated, if necessary, as a Calderbank offer for two reasons. First, a Calderbank offer is an informal offer made outside the operation of the Rules. I am satisfied that the offer dated 21 December 2011 was intended to be made in accordance with the Rules and was not a Calderbank offer. I accept the submissions by counsel for Ms Richardson that this offer should not be treated as a Calderbank offer. Secondly, I think it desirable that this Court treat any such suggestion as strictly as would the NSW Court of Appeal in similar circumstances. The approach taken by that Court is that an offer will not be treated as a Calderbank offer unless it is made explicitly clear at the time that such a status (namely, that it will be relied upon if necessary on the question on costs) will, if necessary, be claimed for the offer (Dean at [32]-[34], Old at [106]). That is the essence of the suggestion made in Calderbank v Calderbank [1975] 3 All ER 333 at 342. The offer of 21 December 2011 made no statement to that effect and, as an offer made under the Rules, it was unnecessary that it do so.

32    Although I am satisfied that the offer dated 21 December 2011 should be treated as an offer conforming to the Rules, the operation of the Rules (including r 25.14) is always subject to the operation of r 1.35, which provides:

1.35    The Court may make an order that is inconsistent with these Rules and in that event the order will prevail.

33    However, I can see no basis in principle on which the respondents should be denied the operation of r 25.14. Insofar as Ms Richardson claimed monetary compensation, the damages she was awarded fell well short of the amount offered by the notice dated 21 December 2011. Her legal costs to that date, or otherwise, are not relevant to that comparison. The declarations made against the respondents do not provide a reason to adjust the comparison. No such declarations were sought as an element of any settlement, so far as there is evidence about such matters. Claims for orders concerning an apology and the implementation of altered procedures were rejected in the primary judgment. I therefore do not see a principled reason to deny the respondents the benefit of the intended operation of r 25.14 or to relieve Ms Richardson from the consequences which follow that intended operation.

34    As a result, at a minimum in my view the respondents would be entitled to an order that their costs be paid on an indemnity basis after 11:00 am on 26 December 2011 (the offer having been served on 22 December 2011). Mr Tucker’s entitlement to such costs would extend until 16 May 2012, when he terminated his direct retainer with the counsel he had chosen to brief. I do not exclude the possibility that he has incurred further professional costs since that time, even though there has been no reference to them.

11 July 2011 offer

35    Mr Tucker’s application for costs (as filed) did not seek an order that, if necessary, he be entitled to indemnity costs from the date of his unilateral Calderbank offer of 11 July 2011. His written submissions, however, did refer to this offer, and the later joint offer dated 21 December 2011. It seems to me to be possible that the application, which was filed electronically, was incomplete. I will assume that Mr Tucker does, if necessary, seek an order for costs on an indemnity basis from 11 July 2011. That is how Ms Richardson’s solicitors have obviously understood his position.

36    It is well established that a Calderbank offer may serve as a foundation for indemnity costs in the event that it is unreasonably rejected. However, in my view Mr Tucker would not be entitled, on an independent basis, to indemnity costs from 16 July 2011 (the day after rejection of the offer made on his behalf on 11 July 2011) even though there are some matters which would give support to such an application. A cogent argument was advanced, for example in the context of the claim then made, that the amount offered would represent a genuine and realistic settlement of any claim against Mr Tucker. The amount offered ($25,0000) was higher than the damages recovered as a result of Mr Tucker’s conduct ($18,000) by a reasonable order of magnitude. It is, in my view, not relevant to assessment of this offer that ultimately a declaration was made in a public way about Mr Tucker’s conduct. Ms Richardson’s solicitors had already offered on her behalf to compromise the proceedings without a declaration to that effect being a condition of the compromise.

37    Despite those matters, I do not think it can be said that Ms Richardson acted unreasonably or imprudently in rejecting this offer. There are a number of reasons for that conclusion. First, it was not an offer to which Oracle was a party. It would not have achieved a complete settlement of the litigation. Secondly, the offer required abandonment of any claim of sexual harassment, whether against Mr Tucker or Oracle. Although Ms Richardson would have been free to pursue other claims against Oracle, she would inevitably have faced additional difficulty in doing so if she abandoned the fundamental claim upon which some of them depended, or from which they took their context. Thirdly, the offer did not address (directly or by implication) the question of Ms Richardson’s costs of the proceedings except that it sought that Mr Tucker be released from any contribution to those costs. It was Mr Tucker’s conduct which lay at the heart of the events in question, and generated the circumstances which followed. There is no reason to suppose that Mr Tucker would have been released from any liability to pay costs or compensation in the primary judgment, except for the position taken by Ms Richardson on the last day of hearing. An offer made on condition that Mr Tucker pay no costs at all invited rejection.

38    I would therefore not have awarded Mr Tucker indemnity costs based on the offer of 11 July 2011. It does not provide an independent foundation for the award of costs in Mr Tucker’s favour. There is no need to explore that issue in greater detail because of the significance of the first joint offer, to which I now turn.

3 September 2010 offer

39    Ultimately, in my view, both Oracle and Mr Tucker have an entitlement to costs on an indemnity basis arising from the joint offer made on 3 September 2010. That offer was made under Order 23 of the former Rules, which also provided for offers of compromise to be made. Order 23 rule 11(5) provided:

11(5)    If:

(a)    an offer is made by a respondent and not accepted by the applicant; and

(b)    the applicant obtains judgment on the claim to which the offer relates not more favourable than the terms of the offer;

then, unless the Court otherwise orders:

(c)    the applicant is entitled to an order that the respondent pay the applicant’s costs in respect of the claim incurred up to 11 am on the day after the day when the offer was made, taxed on a party and party basis; and

(d)    the respondent is entitled to an order that the applicant pay the respondent’s costs in respect of the claim incurred after that time, taxed on an indemnity basis.

40    There is no reason to doubt that the offer made by the respondents, which was served on 3 September 2010, was a genuine one. To the extent that it might be relevant, it was imprudent and unreasonable that the offer not be accepted in light of the findings made in the primary judgment. So far as the assessment of costs is concerned, there is no alternative but to judge the conduct in refusing the offer by reference to those findings. In particular, I must take into account the finding in the primary judgment that the case for economic loss was described as “largely misconceived”. In that context, an offer of $55,000 was more than adequate to accommodate any claim for general non-economic loss which Ms Richardson was advancing. Moreover, for the reasons given in the primary judgment, the offer served on 3 September 2010 was also more than adequate to accommodate any damages which might have been awarded for economic loss, had an occasion arisen to quantify loss of that kind. It was also more than adequate to accommodate a claim for damages against Oracle in its own right, had some of the other complaints made against Oracle been upheld. In that context also, the counter-offer demanding $106,500 was unrealistic by a substantial margin. My comments in [33] above apply here also.

41    It follows that, in my view, the respondents are entitled to indemnity costs from 11:00 am on 4 September 2010.

The two-thirds rule

42    Order 23 rule 11(5)(c) created a prima facie entitlement for Ms Richardson to obtain her costs up to 11:00 am on 4 September 2010, taxed on a party and party basis. Order 62 of the former Rules dealt with the assessment of costs. Order 62 rule 36A(1) of the former Rules provided:

36A(1)    When a party is awarded judgment for less than $100,000 on a claim (not including a cross-claim) for a money sum or damages any costs ordered to be paid, including disbursements, will be reduced by one-third of the amount otherwise allowable under this Order unless the Court or a Judge otherwise orders.

43    One apparent reason for this rule was to discourage unnecessary litigation in this Court when a more suitable forum was available. Although, as the submissions made for Ms Richardson point out, Oracle made no suggestion that the case was more suitable for the Federal Magistrates Court of Australia (“the FMCA”) than for the Federal Court, that was a question which was explicitly raised with the parties at a very early stage. Ms Richardson’s opposition to her case being transferred to the FMCA was based in part on the fact that her claim for damages was about $450,000. Although Oracle also identified some issues arising from the statement of claim that might have raised unresolved questions of law (such as the existence of an implied term of trust and confidence in contracts of employment) matters of that kind did not ultimately justify retaining the matter in this Court. There is no reason not to treat the present as a claim for very substantial damages which was substantially unsuccessful. That is clearly one of the things to which O 62 r 36A was addressed.

44    It appears to me, therefore, that any amount allowed to Ms Richardson on a party and party basis up to 11:00 am on 4 September 2010 will be liable to be reduced as contemplated by O 62 r 36A. That is a step to be taken on an assessment of costs by a taxing officer and requires no further attention here, except for me to make it clear that I see no reason in principle to order otherwise.

Apportionment

45    Oracle made a further submission in the alternative to its claim that Ms Richardson should pay Oracle’s costs on an indemnity basis as a result of either the offer of 3 September 2010 or the offer dated 21 December 2011. As I have found that each of those offers provides a good foundation for an order for indemnity costs, and that indemnity costs should be paid by Ms Richardson from 4 September 2010, I may deal with this alternative submission briefly.

46    The submission was that, if Ms Richardson was entitled to costs (presumably of the proceedings generally) she should only be awarded one third of those costs. The reasons given included the proposition that some claims for relief were unsuccessful and that considerable time and evidence was devoted to those claims. So far as it goes, that argument has some force.

47    Nevertheless, the general rule is that costs follow the event. Oracle resisted any finding of sexual harassment by Mr Tucker, as well as denying its own vicarious liability for Mr Tucker’s conduct. Oracle lost both aspects of that argument. The sexual harassment case was foundational to the other claims. Although they required additional attention and evidence, I would not have been disposed to reduce Ms Richardson’s costs by reference to the matters relied upon by Oracle. The reasonableness of those costs might have been a different issue, but that issue would arise on taxation and not as a bar to an order for costs, or as a reason to order that they be reduced from any amount otherwise appropriate on a party and party basis.

Costs of the present applications

48    Oracle has accepted that it must pay Ms Richardson’s costs on an appropriate basis until 11:00 am on 4 September 2010. Mr Tucker has made no suggestion that he should pay any part of those costs. As earlier indicated, Ms Richardson sought to depart from the position taken on the final day of hearing. She sought an order that if a costs order is made in favour of Mr Tucker then any costs order made in her favour should be made jointly and severally against both Oracle and Mr Tucker. I have already indicated that I see no reason to make such an order. The interlocutory application seeking that order will be dismissed with costs (if any).

49    Ms Richardson resisted the costs order sought by Oracle and Mr Tucker. They are entitled to their costs (if any in Mr Tucker’s case) of making those applications, subject to the following matter.

50    It was necessary to resolve one issue about the evidence claimed to be admissible on the costs application. That issue concerned the admissibility of a portion of a letter sent by Ms Richardson’s solicitors to Oracle’s solicitors on 16 July 2012. Argument about that issue was heard on 5 April 2013. For reasons which appear adequately from the transcript of proceedings on that day, I rejected the evidence and said I would pay no regard to any submissions which referred to it, or relied upon it. Ms Richardson has sought her costs of that hearing. In my view she is entitled to those costs. The evidence was objected to. It was pressed. A hearing was necessary. Ms Richardson’s position prevailed. Costs of that hearing should follow the outcome.

Conclusion

51    Subject to the outcome of any appeal, the final outcome of these proceedings, in financial terms at least, will probably be devastating for Ms Richardson both financially and personally. Although the findings made in the earlier judgment provide public vindication of her position, she will remain solely responsible for the payment of the bulk of her own legal costs and obliged to pay a high proportion of the legal costs of the respondents. That will be a very high price to pay for her victory.

52    However, to the extent that the proceedings were maintained in pursuit of a claim for damages by way of compensation in an amount higher than was offered, the respondents are entitled to the protection contemplated by the Rules and the former Rules. The amount of Ms Richardson’s own legal costs is a matter between her and her solicitors. There is no occasion, either, to diminish the level of protection to which the respondents are entitled by reference to the fact that Ms Richardson’s claims to have been sexually harassed were, without exception, upheld.

53    As a result of the foregoing conclusions, Oracle must pay Ms Richardson’s costs of the main proceedings on a party and party basis up to 11:00 am on 4 September 2010, such costs to be taxed if not agreed. Ms Richardson must pay Oracle’s costs of the main proceedings, and those of Mr Tucker, on an indemnity basis from 11:00 am on 4 September 2010 for as long (in Mr Tucker’s case) as professional costs were incurred. Oracle must pay Ms Richardson’s costs of the hearing on 5 April 2013. Ms Richardson must otherwise pay Oracle’s costs (and any professional costs incurred by Mr Tucker) of the respondents’ applications for costs and of her application for costs.

Associate:

Dated:    19 April 2013