Barr and others v Biffa Waste Services Ltd (No 4) [2011] EWHC 1107 (TCC), [2011] All ER (D) 77 (May)
Unreasonable conduct “to a high degree” was necessary for an order for indemnity costs. An order for indemnity costs was appropriate only where “there was some conduct or some circumstance which took the case out of the norm”. The pursuit of claims which could be fairly described as “speculative, weak, opportunistic or thin” gave rise to a high risk that, if the claim failed, indemnity costs would be ordered.
A claimant’s refusal of a defendant’s Pt 36 offer which the claimant subsequently failed to beat might, subject to the court’s discretion, be determinative of his liability to pay indemnity costs. However, it should not be thought that it was generally appropriate to condemn in indemnity costs those who declined reasonable settlement offers.
