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Claiming costs in one action as damages in another

Playboy

Can you claim costs you have had to pay as a consequence of losing an action as damages in a subsequent action against the same party?

The High Court says yes, potentially, at least on the facts of this case.

Allowing an amendment to the claim in proceedings for deceit to allow the Claimant to seek recovery of costs (own and adverse) incurred in a prior (albeit related) action against the same Defendant (which it had lost) Deputy High Court Judge, Martin Griffiths QC said:

“I have come to the conclusion that the argument of principle, novel as it is, should not be decided in the absence of findings on all the disputes of fact in this case. Since the nature of the claim is unprecedented, it may be difficult to establish, but I think that the prospects of the Claimant succeeding are more than merely fanciful. Obviously, it will be harder for it to do so than if a clear and directly comparable precedent did exist. But that is not to say it cannot be done. It may be that a case like this one will be allowed to succeed in some circumstances and not in others, so that (as Devlin LJ said in Berry) the point should be decided at trial and not by refusing permission to amend so that it cannot be argued at all.”

PLAYBOY CLUB LONDON LTD v BANCA NAZIONALE DEL LAVORA SPA [2019] EWHC 303 (COMM)