CPR 38.3 provides that a Claimant may discontinue a claim by filing and serving a Notice of Discontinuance on the other parties. Under CPR 38.6(1) it states the following:
“Unless the court orders otherwise, a Claimant who discontinues is liable for the costs which a Defendant against whom the Claimant discontinues incurred on or before the date on which the Notice of Discontinuance was served…”.
Under CPR 44.9(1), such an order is a deemed order for costs and the basis of assessment is the standard basis.
The case of Two Right Feet Limited (in liquidation) -v- National Westminster Bank PLC and others is a case where the Claimant discontinued proceedings against the Defendants and the Defendants made an application for costs to be awarded on the indemnity basis due to the following issues:
- failure to engage pre-action;
- improper and unjustified allegations;
- an exaggerated claim;
- a case which was speculative (both in facts and law);
- a claim which was brought without proper investigation;
- concerns as to the approach to disclosure; and
- delayed discontinuance, other delays and more minor points.
On 3 March 2015, the Claimant commenced proceedings against the Defendants. In the claim form, the Claimant alleged that the Defendants were liable for deceit and conspiracy. The claim was first notified to the First and Second Defendants on 9 June 2015 and the claim form was served on 3 July 2015. The amounts claimed amounted to £20 million. The claims were strenuously denied by the Defendants. On 7 October 2016 there was a case management conference where directions were set and the case was transferred into the Mercantile Court. Disclosure followed in January 2017, but on 22 February 2017 the Claimant discontinued its claim.
Indemnity Basis Costs Order
The Judgment provides very useful information for any party considering an application for an indemnity basis costs order as it cites the leading authorities (paragraph 36 is very useful to read in this regard).
The Judge concluded that an order for indemnity costs was appropriate and determined that the way in which the case had been advanced by the Claimant (and conducted) carried the case out of the norm, which is of course an important consideration for any court when deciding whether to award indemnity costs.
The case also highlights the importance of the receiving party (Defendants in this case) making an application. Notice of Discontinuance creates a deemed order for costs on the standard basis. Should a receiving party feel that they are entitled to indemnity basis costs then they should seek agreement with the paying party (Claimant in this case) or make an application to Court. A receiving party should not leave the matter for detailed assessment – the detailed assessment hearing is a forum to determine the quantum of costs, not to determine the basis of assessment.
This blog was prepared by Andrew McAulay who is a Partner at Clarion and the Head of the Costs and Litigation Funding team. He can be contacted on 0113 336 3334 or at firstname.lastname@example.org