Indemnity costs award on ADR refusal
The claimant succeeded in his claim for damages for historic sexual abuse, and recovered more than his rejected offer for settlement. He now claimed his costs on an indemnity basis.
Held: ‘It is correct that an order for indemnity costs means that CPR44.3(2)(a) does not apply, with the result that the requirement when costs are assessed on the standard basis that costs should be ‘proportionate to the matters in issue’ does not apply. But that does not make me think that it would be unjust to make the order for indemnity costs which I must otherwise make under CPR 36.17(4)(b). It is an inherent feature of indemnity costs that proportionality is not a factor on assessment, and indemnity costs are the usual order for costs when a Defendant fails to beat a Claimant’s Part 36 offer.’
The claimant also sought indemnity costs, saying that the defendant had failed to enter into alternative dispute resolution discussions.
Held: the Defendant in this case failed and refused to engage in any discussion whatsoever about the possibility of settlement. It did not respond to any of the three Part 36 offers (except to reject the final one). It was required by paragraph 4 of the Order of Master McCloud ‘to consider settling this litigation by any means of Alternative Dispute Resolution (including Mediation)’. It was warned by the same Order that if it did not engage in any such means proposed by the Claimant it would have to give reasons, and it was also warned that the reasons it gave might in due course be shown to the trial judge when the question of costs arose. Costs for a limited period were awarded on an indemnity basis.
Mr Justice Griffiths
[2020] EWHC 670 (QB)
Bailii
England and Wales
Citing:
Main Judgment – DSN v Blackpool Football Club Ltd QBD 13-Mar-2020
Action against a football club in respect of historical sexual abuse by a coach against young boys. . .
Cited – Dunnett v Railtrack plc CA 22-Feb-2002
The claimant had appealed a judgment against her. The court itself recommended that the parties use a method of alternate dispute resolution, to avoid the need for appeal. The defendant refused, not wishing to make any payment over and above the . .
Cited – East West Corporation v DKBS 1912 and Another ComC 27-Feb-2002
‘The purpose of the award of an enhanced rate of interest or indemnity costs is to encourage parties to make offers of settlement in the ordinary sense of that word. It is to compensate the claimant who has made an offer that should have been . .
Cited – Excelsior Commercial and Industrial Holdings Ltd v Salisbury Hammer Aspden and Johnson (A Firm) CA 12-Jun-2002
The court was asked as to when it is appropriate to order costs on an indemnity basis. Waller LJ said: ‘The question will always be: is there something in the conduct of the action or the circumstances of the case which takes the case out of the . .
Cited – Macinnes v Gross QBD 3-Feb-2017
Application of costs budget . .
Lists of cited by and citing cases may be incomplete.
Costs
Updated: 10 November 2021; Ref: scu.649909
