Robert Deacon and Shawna Pasquale (instructed by EMW LLP ) for the claimant; Brian Doctor QC and Giles Robertson (instructed by Berwin Leighton Paisner LLP ) for the defendants.
On 1 August 2014 the court handed down a written judgment in this claim ( [2014] Bus LR 1110) and heard submissions on costs. On the same date, the court ordered the claimant to pay the defendants’ costs of the claim, and it was agreed that a payment on account of those costs should be ordered. The defendants subsequently brought an application that those costs should be assessed on the indemnity basis. The defendants contended that the claim had had the requisite significant level of unreasonableness to justify the court making an order for costs on an indemnity basis.
The pursuit of this claim by the claimant was not unreasonable to a high degree in the period up to 30 November 2013, but after that it was. The pursuit by the claimant thereafter of a claim based on allegations of breaches of duty far more extensive than those breaches which there was a reasonable basis for alleging, claiming damages of over £4m which was far in excess of any reasonable estimate of loss, meant that it was just that the defendants should be entitled to recover costs they incurred after that date even though those costs might have been disproportionate, and that it was also just that any doubts that the court might have as to whether the defendants’ costs after that date were reasonably incurred or reasonable in amount should be resolved in the defendants’ favour. Accordingly, the defendants’ costs (if not agreed) were to be assessed on the standard basis up to 30 November 2013, and from 1 December 2013 they were to be assessed on the indemnity basis.