The matter of Dover Farm Developments Ltd v Smith [2025] EWHC 2862 (KB) (11 November 2025) related to a defamation claim where the parties made cross applications; the Claimant’s application was in respect of permission to amend their Particulars of Claim, and the Defendants’ application (who were husband and wife Litigants in Person) was to strike out the claim.
The applications were both listed to be heard remotely on 14 July 2025 and both applications were unsuccessful. The Defendants’ application was dismissed, and the Claimant’s application was refused due to their failure to provide a copy of the proposed amendments to the Particulars of Claim. The Court did, however, grant permission to restore the application to amend the Particulars of Claim, ordering directions for compliance, and also ordering that the matter be stayed until 28 July 2025 to enable the parties to engage in mediation via the Court. The mediation was successful save for the issue of costs relating to the hearing of 14 July 2025.
Costs Decision
Under the general rule contained in CPR 44.2 (2), each party was entitled to their costs of the other party’s application (on the basis both were unsuccessful). However, Master Fontaine relied upon the provision of CPR 44.2(2)(b), which states that the Court may make a different order, and he considered various factors which resulted in a decision whereby the Claimant was awarded their costs of dealing with the Defendants’ strike out application, with a 15% deduction. The deduction was to take into account various factors including: the fact the Claimant did not provide a copy of their proposed amended Particulars of Claim, even though they were professionally represented; and that the hearing of 14 July 2025 was not a wasted hearing because it urged the parties to consider the proposal of a mediation conducted by the Court, given it was unlikely the Defendants would attend a private mediation due to the level of costs involved.
This proposal by the Court led, ultimately, to a successful resolution of the matter. A further 5% deduction was applied on the basis the Claimant’s statement of costs did not separate out the costs associated with each application.
This case displays how the Court can exercise their powers in respect of ADR and also under CPR 44.4(2)(b). It particularly highlighted how it could be beneficial to Litigants in Person who would, otherwise, have been unable to participate in mediation due to the costs involved. However, it remains to be seen how frequently the Court will exercise such powers.