Commentary - Always worth inviting court

The court will look at the parties' conduct when considering what costs order is appropriate and thi...

The court will look at the parties' conduct when considering what costs order is appropriate and this has been demonstrated by two recent first-instance cases.

In Re the Estate of Jean Wylde, deceased sub nom Robert Graham Wylde v Teresa Dianne Culver (executrix of the estate of Jean Wylde, deceased) (2006), the court disagreed with the defendant's contention that the claimant had acted in bad faith when contesting a will and then applying to discontinue the action. It decided to make no order as to costs rather than award the defendant her costs of the action.

Similarly, in R (by her litigation friend MB) v Lambeth London Borough Council (2006), which involved a judicial review, the defendant failed to recover its costs of the action. This was despite it maintaining that the claims form did not specify any discrete grounds of challenge. The defendant asked that the claimant withdraw her application or supply amended grounds but, at an adjourned hearing, the claimant failed to do so.

The matter was adjourned so that amended grounds could be supplied but before this hearing the parties reached an agreement except over the issue of costs.

The court decided that the claimant's partial success in proceedings had to be counter-balanced by the defendant's argument that it should at least be awarded the costs in relation to the period since the adjourned hearing. The court, therefore, decided that the appropriate order was no order as to costs.

These cases demonstrate that even if you are unsuccessful in arguing that the other party should pay your costs on an issue, you should consider inviting the court to look at all the circumstances of the matter and make 'no order as to costs' rather than surrender to a 'costs in the case' order.

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