Litigants are entitled to play hardball if they consider it to be in their interests, provided they play by the rules. Rule-breaking will be penalised in costs.
Following its ruling on quantum of damages for trespass, the court has considered claims for costs in Chedington Events Ltd v Brake and another [2023] EWHC 11 (Ch).
Both parties claimed success and sought their costs on an indemnity basis. Costs are in the discretion of the court but the general rule is that the unsuccessful party should pay the successful party’s costs (CPR rule 44).
The claim for mesne profits was around £700,000 but the claimant was awarded just under £237,000. So the defendants claimed they were the successful parties. However, they had defended the entire damages claim, arguing the trespass had caused no loss to the claimant. That defence had failed so the claimant was the successful party and entitled to its costs.
The judge decided the defendants’ conduct of the quantum trial had unnecessarily increased costs:
- When the claimant agreed to the defendants’ request to amend their statement of case, they refused to agree the usual provision that they would pay the claimant’s costs of and occasioned by the amendments;
- They took almost two months to make a formal application for permission to amend;
- They failed to meet at least six procedural deadlines and there was a pattern of ignoring time limits;
- Their evidence did not comply with the CPR either in respect of expert evidence or witness statements;
- They interfered with the expert evidence process by asking questions of the claimant’s expert which were outside the scope of the rules;
- They did not admit basic facts within their knowledge and prevaricated on procedural requirements.
While the defendants were not lawyers, they were experienced and astute litigants in person. There is no special regime for litigants in person. The judge did not criticise them for playing hardball, provided that they played by the rules. However, they were well aware they were breaking the rules and that their litigation conduct was poor.
The claimant sought a global settlement in May 2022 and, when that did not work, offered to settle the quantum claim only in September 2022. The defendants did not negotiate seriously on the latter, relying on offers intended to improve their negotiating position rather than solve the litigation. This, together with the cumulative effect of their conduct under 3-6 above, took the case out of the norm and justified an award of indemnity costs.
Louise Clark is a property law consultant and mediator
