“In my judgment, the production of the Deed was a change in circumstances which justified discontinuing her claims to a beneficial interest in the Property of her and/or the deceased…. the change in circumstances was brought about by unreasonable behaviour by the defendants. The defendants’ solicitors did not properly engage with pre-action correspondence. Although the available evidence indicates that their clients had the Deed, having been sent the relevant files by Booth & Co, they did not produce a copy of it until 18 months after the claimant’s initial request. Even now, no explanation has been given as to why the Deed was not produced in September 2016, what steps were taken by the first defendant to look for it, what enquiries he made and searches he carried out and when and where the Deed was found.”
The court exercised its discretion against allowing a defendant to set off ‘costs against costs’ in a case where it unsuccessfully applied to resurrect a discontinued claim with a view to striking it out and thus removing the protection of QOCS by virtue of CPR 44.15.
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.
This was a decision of Jacobs J as to the entitlement of the defendant following discontinuance to an award of indemnity costs and a payment on account pursuance to CPR 44.2(8). The Court held that there was nothing “out of the norm” in the claimant’s conduct of the proceedings (in which they sought the enforcement of a Swedish arbitration award) up until a hearing of the defendant’s application to set aside in June 2017 when Robin Knowles J found that the defendant’s three original grounds of challenge were no longer maintainable, but that they had had established a prima facie case that the award was obtained by fraud.