Kerry Underwood

INDEMNITY COSTS: A RECENT CASE

with 2 comments


I include a roundup of recent cases in relation to costs and funding in my Personal Injury Reforms Course which can be booked here.

 

Earlier this month I completed an 8 day trek in the Sahara Desert to raise money for the Lord’s Taverners cricket charity for disadvantaged children. Please go here if you would like to make a donation.

 

In Newmarket Holdings (Guernsey) Ltd v Confiance Ltd and others (unreported), 7 March 2017, (High Court)

 

the court considered whether the claimant’s failure to pay security for costs was equivalent to serving a notice of discontinuance which justified an order for indemnity costs.

 

The court drew a distinction between a forced and a voluntary withdrawal from proceedings.

 

The judge acknowledged that when fraud was pleaded and a claim discontinued, those factors alone could justify an indemnity costs order (Clutterbuck v HSBC plc [2015] EWHC 3233 (Ch)).

 

The judge distinguished those cases where the claimant realised that a claim was bad and voluntarily withdrew (voluntary withdrawal), and cases where the claimant was faced with a change in circumstances that put significant pressure on them to withdraw a claim which they still considered had merit (forced withdrawal).

 

The case here was one of forced withdrawal.

 

The judge did not accept that the claimant’s failure to meet the order for security for costs equated to serving a notice of discontinuance.

 

There might be circumstances where a claimant chose to discontinue rather than incur costs in complying with directions already made by the court.

 

Discontinuing on that basis would not be a recognition that the case was bad, but a recognition that it would be a waste of costs to proceed.

 

The judge held that the claimant had taken steps to try and raise the money to meet the costs order but had fallen short of the required sums and, as the claim was neither “speculative” nor “opportunistic”, it was not appropriate to award costs on the indemnity basis but on the standard basis.

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Written by kerryunderwood

April 24, 2017 at 8:52 am

Posted in Uncategorized

2 Responses

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  1. Hi Kerry,

    Was wondering whether you had published your new book yet? I ordered an advanced copy some time ago but do not appear to have received it yet. Any update on delivery date?

    Regards,

    Jonathan

    Jonathan D Hine

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    Jonathan Hine

    April 27, 2017 at 3:11 pm

    • Jonathan

      It has just been delivered and will be with you very shortly- all 3 volumes. Thanks for your patience.

      Kerry

      kerryunderwood

      April 27, 2017 at 11:48 pm


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