header-logo header-logo

The default rule on costs: a high bar

19 April 2024 / Jack Ridgway
Issue: 8067 / Categories: Features , Profession , Costs
printer mail-detail
168627
Exceptions to the default rule on costs in discontinued cases are rare but do exist, explains Jack Ridgway
  • Notes that it is a high bar for the court to disapply the default rule in CPR 38.6(1) that a claimant who discontinues is liable for the defendant’s costs.
  • Covers the unusual case of Benjamin v Benjamin & Anor [2024], in which the court found the claimant had acted reasonably while the lack of capacity was unknown.

When should a court disapply the default rule in CPR 38.6(1) that a claimant who discontinues is liable for the defendant’s costs? That was the question before Chancery Master McQuail in Benjamin v Benjamin & Anor [2024] EWHC 215 (Ch).

It is a high bar. The principles applicable to the exercise of the court’s discretion under CPR 38.6(1) were summarised by the Court of Appeal in Brookes v HSBC Bank [2011] EWCA Civ 354 [2011] All ER (D) 341 (Mar), as adopted and approved by the Court of Appeal in Nelson’s

If you are not a subscriber, subscribe now to read this content
If you are already a subscriber sign in
...or Register for two weeks' free access to subscriber content

MOVERS & SHAKERS

Birketts—trainee cohort

Birketts—trainee cohort

Firm welcomes new cohort of 29 trainee solicitors for 2025

Keoghs—four appointments

Keoghs—four appointments

Four partner hires expand legal expertise in Scotland and Northern Ireland

Brabners—Ben Lamb

Brabners—Ben Lamb

Real estate team in Yorkshire welcomes new partner

NEWS
Robert Taylor of 360 Law Services warns in this week's NLJ that adoption of artificial intelligence (AI) risks entrenching disadvantage for SME law firms, unless tools are tailored to their needs
Charles Pigott of Mills & Reeve charts the turbulent progress of the Employment Rights Bill through the House of Lords, in this week's NLJ
The Court of Protection has ruled in Macpherson v Sunderland City Council that capacity must be presumed unless clearly rebutted. In this week's NLJ, Sam Karim KC and Sophie Hurst of Kings Chambers dissect the judgment and set out practical guidance for advisers faced with issues relating to retrospective capacity and/or assessments without an examination
From oligarchs to cosmetic clinics, strategic lawsuits against public participation (SLAPPs) target journalists, activists and ordinary citizens with intimidating legal tactics. Writing in NLJ this week, Sadie Whittam of Lancaster University explores the weaponisation of litigation to silence critics
Delays and dysfunction continue to mount in the county court, as revealed in a scathing Justice Committee report and under discussion this week by NLJ columnist Professor Dominic Regan of City Law School. Bulk claims—especially from private parking firms—are overwhelming the system, with 8,000 cases filed weekly
back-to-top-scroll