The third defendant sought an order that the costs of the claim for an injunction against him, once it was discontinued on the second day of trial, should be assessed on an indemnity basis.
Held: The order should be made. The power of the court under Rule 38.6 to ‘order otherwise’ clearly includes power, in an appropriate case, to order that the defendant’s costs should be paid on the indemnity basis.
Rattee J said: ‘I should say that one of the striking features of this case, having regard to the claim for an injunction which has been made throughout by the claimant against the third defendant, is that at no stage was any attempt made to obtain from the Court any interim injunction. The result of that, of course, has been inevitably that by the time the trial of this action started at the beginning of this week the defendant’s business had been up and running for nearly a year, certainly nearly 11 months, and Mr Dowding, on behalf of the claimant, realistically accepted that, as a result, any claim he might otherwise have had for an injunction was seriously undermined, given that there had been no attempt by his client, in the meantime, to seek interim injunctive relief from the Court.
I do not find this an easy question but, on balance, I think the claimant should have to pay the third defendant’s costs on an indemnity basis. I am concerned by the way in which this litigation has been conducted on the part of the claimant against the third defendant, culminating in the notice of discontinuance today.’
 CP Rep 32
Cited – Wates Construction Ltd v HGP Greentree Allchurch Evans Ltd TCC 10-Oct-2005
A unit constructed by the claimant had collapsed under a weight of rainwater. It had been constructed according to a design provided by the defendants. The claimants had discontinued the action on the morning of the trial, and the defendants now . .
Lists of cited by and citing cases may be incomplete.
Updated: 11 May 2022; Ref: scu.524024