Who Should Pay The Costs Of A Withdrawn And Undetermined Application?

COTHAM SCHOOL V BRISTOL CITY COUNCIL & KATHARINE WELHAM [2025] EWHC 1804 (CH)

In Cotham School v Bristol City Council & Welham [2025], the court addressed costs issues arising from a withdrawn contempt application. Cotham had alleged Ms Welham breached CPR r.32.12(2) by using a witness statement for a collateral complaint to Ofsted, but withdrew the application post-trial. Ms Welham sought indemnity costs, arguing the application was misconceived, particularly citing an inappropriate suggestion of a donation to purge contempt (referencing Navigator Equities Ltd v Deripaska [2022]). Cotham maintained the application was justified given Ms Welham’s conduct. Applying Andrew Hicks Engineering Ltd v Jenk Associates Ltd [2023], the court declined to determine which party would have succeeded, noting arguable points on both sides, including the timing of Cotham’s application and the donation issue. Despite Ms Welham’s without prejudice offer, the court made no order as to costs, finding it inappropriate to resolve the contempt merits solely for costs purposes. The application’s unresolved nature precluded any costs order.

“I do not know who would have succeeded if Cotham’s contempt application had been pursued. But I am satisfied that on the face of it there was at least something to argue about."

Citations

R (Davies) v Birmingham Deputy Coroner [2004] 1 WLR 2739 Where a public authority adopts a neutral stance in litigation, courts may make no order as to costs against it, even if it is technically unsuccessful. Barton v Wright Hassall LLP [2018] 1 WLR 1119 The rules of civil procedure apply equally to litigants in person and represented parties, and no special indulgence is granted as to costs. Thomas Pink Ltd v Victoria’s Secret UK Ltd [2014] EWHC 3258 (Ch) In cases with approved costs budgets, courts may order substantial payments on account of costs post-trial, often assessed as a percentage of the approved budget. Andrew Hicks Engineering Ltd v Jenk Associates Ltd [2023] EWHC 2031 (Ch) Where an application is withdrawn before determination and no clear success is attributable, the court may decline to make an order for costs in the absence of sufficient factual findings. IG Index Ltd v Cloete [2015] ICR 254 The use of information contained in a disclosed witness statement for purposes beyond the proceedings constitutes a prohibited collateral use under CPR. Navigator Equities Ltd v Deripaska [2022] 1 WLR 3656 A contempt application pursued for a collateral or improper purpose, such as to exert settlement pressure, constitutes an abuse of process. Volpi v Volpi [2022] 4 WLR 48 Appellate courts may only interfere with findings of fact where the trial judge was plainly wrong, meaning no reasonable judge could have reached the same conclusion. FAGE UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5 Evaluative decisions involving findings of fact and their interpretation are afforded significant deference on appeal and will not be disturbed unless clearly erroneous. Powell v Secretary of State [2014] EWHC 4009 (Admin) When assessing “use as of right” in registration of land cases, the correct test involves considering the impression made on a reasonable landowner, not the actual landowner’s subjective view.

Track allocation housing disrepair CPR 46.13 settlement sum costs restriction SCCO

MRO fee markup cap 25% detailed assessment personal injury Senior Courts Costs Office

Security for costs refused CPR 25.27 very high probability success excessive estimate King's Bench

IPEC scale costs transfer Patents Court PD 30 para 9.2 costs caps Court of Appeal

Costs budget variation CPR 3.15A promptness significant development unfair prejudice Chancery Division

Costs budgeting inter partes proportionality high hourly rates AI disclosure Patents Court CPR 3E

Beneficiary personal liability section 71(3) Solicitors Act 1974 indemnity costs VAT self-supply SCCO

Summary assessment indemnity costs unless order payment on account disclosure default Chancery Division

Provisional assessment set aside CPR 3.1(7) points of dispute filing duty PD 47 para 14.3 SCCO

Fixed recoverable costs police claims CPR 26.9(10)(e) intentional tort exemption

Key Points

Where an application is withdrawn before determination, the court must not attempt to resolve its merits solely for the purpose of deciding costs; instead, it may decline to make any costs order in the absence of a clear basis for identifying a successful party. [22, 27]
A unilateral withdrawal of an unresolved application does not, without more, indicate acceptance that the application was misconceived or bound to fail and does not, by itself, justify a costs award against the applicant. [23]
The making of a settlement offer marked “without prejudice save as to costs” may be taken into account when deciding costs after an application is withdrawn, but it will not conclusively determine liability unless the court can ascertain from admissible material which party was successful. [22, 23, 27]
If the court cannot discern from available evidence or proper inference which party would have succeeded on an application that was withdrawn or not determined, the appropriate approach may be to make no order as to costs. [22, 27]
A party’s conduct, including delay or lack of cooperation in resolving factual disputes before issuing an application, may be relevant but will not in itself shift the costs position where the merits of the underlying issue remain undecided. [26, 27]

"On the other side, there was also something to be said for the inappropriateness of the suggestion by Cotham solicitors of a donation to the school as part of purging the alleged contempt.”

Key Findings In The Case

Cotham School withdrew its contempt application against Ms Welham unilaterally and without reaching any settlement agreement, but the withdrawal effectively gave Ms Welham what she had previously offered in a without prejudice save as to costs settlement proposal. The court found this unremarkable and did not treat it as acceptance of weakness or failure in the application [23].
Although the judge determined that there was a prima facie basis for the contempt application—due to Ms Welham’s communication with Ofsted referring to concerns about the conduct of a witness—he concluded that the merits of the withdrawn application could not and should not be resolved solely for the purposes of determining costs [22, 24].
Ms Welham made a “without prejudice save as to costs” offer to settle the contempt issue on terms that neither party would pursue their respective applications and each would bear their own costs; this was taken into account when assessing the appropriate costs order post-withdrawal but was not determinative of liability [23].
The court considered the full context of Cotham’s decision to file the contempt application, finding that its timing was reasonable given the delayed disclosure by Ofsted of relevant information, and the lack of cooperation from Ms Welham in disclosing her correspondence, but ultimately, this conduct did not justify awarding costs against her in the absence of a conclusive result on the merits [25–26].
On the totality of evidence and procedural conduct, the court determined that it was not in a position to identify a successful or unsuccessful party in relation to the contempt application, and accordingly made no order as to costs on that application, in line with established principles for unresolved matters [27].

“...even taking into account all the material before me, I do not think I am in a position to say which would have been the successful party on the contempt issue, and which the unsuccessful. In these circumstances, including the without prejudice save as to costs offer, I do not think it is appropriate for the court to make any order as to the costs of the contempt issue. I therefore decline to do so.”

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