Having made findings at trial that the claimant had exaggerated his personal injury claim, specifically in respect of loss of earnings, Mr Justice Farby had to determine if, and to what extent, this should be reflected in the award of costs.
Prior to commencement of these public interest judicial review proceedings the parties had agreed that they recoverable costs on each side would be limited to the sum of £3,000. The proceedings were ultimately dismissed and the Appellant was ordered to pay 67% of the SSHD’s capped costs i.e. £2,000.
The Appellant appealed the substantive decision, unsuccessfully, to the Court of Appeal.
The SSHD cross appealed the order for costs on grounds that the judge erred in law by applying the reduction of 33% to the capped rather than the “much higher” actual costs of the SSHD, when calculating the amount of costs to be paid.
This “long-running and ill-tempered dispute” between directors and shareholders of a residents association ended in September 2019 when the claimant filed a Notice of Discontinuance.
Master Clark was asked to determine whether the court should exercise its power under CPR 38.6 to disapply the default rule that the claimant should pay the costs of the claim.
His judgment provides a useful look at the principles governing costs following discontinuance.
Mr Justice Teare determined an application for indemnity costs following the dismissal of the second claimant bank’s US$77 million claim for an indemnity from the defendant underwriter pursuant to a war risks insurance policy for the constructive total loss of the vessel BRILLANTE VIRTUOSO by piracy.