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.
This was another in a line of cases which confirms that a Part 36 Offer cannot contain any provision as to costs. Disagreeing with Hildyard J in Proctor & Gamble Co v Svenska Celluslosa HHJ Paul Matthewsheld that he was bound by the Court of Appeal decisions in Mitchell v James and French v Groupama, neither of which had been cited to Hildyard J, that no term as to costs should be included in a Part 36 offer, even if to the benefit of the offeror.
This was a costs decision following determination of 23 common issues between the parties in group litigation between several hundred sub-postmasters and The Post Office. It dealt with a number of issues, including:
Whether the costs of the Common Issues should be reserved;
Who should pay the costs of the Common Issues and in what proportion;
Whether the costs be assessed on the standard or on the indemnity basis;
An application for an interim payment on account; and
Timing of the detailed assessment of the costs.
Following proceedings for an account by the claimants as executors of what they had done with the deceased’s estate HJJ Matthews ordered that defendant do pay 80% of the claimant’s costs. He was then asked to decide whether the claimants should be entitled to an indemnity for the remaining 20% balance from the estate. Concluding that whilst they had lost on some issues the claimants had not behaved improperly or unreasonably and in accordance with section 31 of the Trustee Act 2000 (applied to executors by section 35) and CPR Part 46 Practice Direction, paragraph 1 they were entitled to such an indemnity.
On appeal against decisions made in the course of a detailed assessment in the Senior Courts Costs Office Mrs Justice Yip found (amongst other things) that the Deputy Master had been wrong to go behind the strict wording of the order for costs in order to give effect to what she believed the maker of the order had intended, rather than to what it actually said.