Obstructive Conduct Of An ECRO Application Justifies Indemnity Costs | Judge Leaves Open Whether An ECRO Alone Would Suffice

In Prescot Management Company Limited & Anor v Zahid Khan [2026] EWHC 2855 (BP), the High Court awarded indemnity costs of a successful extended civil restraint order application because of how the respondent conducted the application itself. The judge left open whether the order alone would suffice, so applicants should identify and evidence the specific procedural conduct they rely on.

Background

The Claimants applied for an Extended Civil Restraint Order (ECRO) against Mr Khan, who acted in person. Most of his claims and applications were founded on his continued assertion of a beneficial interest in a flat, despite earlier orders [9]. Mr Justice Twigger heard the application on 26 October 2026 and made the ECRO in an extempore judgment that afternoon [1].

Given the time at which judgment concluded, the judge directed written submissions on costs [1]. Mr Khan was permitted to file his submissions by 2 November 2026 [18]. The written judgment dealt with Mr Khan’s objections to the draft order and then with costs, which the judge decided on the parties’ written submissions [2], [18].

Costs Issues Before the Court

Two questions arose on the incidence and basis of costs. The first was whether the Claimants, as the successful party, should have their costs. The second, and the contested one, was whether those costs should be assessed on the indemnity basis. The Claimants also invited a summary assessment, which the judge carried out in the same judgment [23].

The Parties’ Positions

The Claimants sought their costs on the indemnity basis [20]. Mr Khan submitted that the fact of an ECRO being made is not enough to justify an order for costs on the indemnity basis without more [22].

The Court’s Decision

The judge disposed of the first question shortly. The Claimants were the successful party and, in accordance with the general rule, were entitled to an order that Mr Khan pay their costs. There was no basis to depart from the general rule [19].

On the basis of assessment, the judge stated the test without citing authority. Costs are ordered on the indemnity basis where the conduct of the parties, or the circumstances of the case, or both, take the situation “out of the norm” in a way which justifies such an order. That expression refers to something outside the ordinary and reasonable conduct of proceedings [20].

He was satisfied that indemnity costs should be ordered. The decision rested on his overall assessment of Mr Khan’s conduct, but he identified five factors which had weighed heavily [21]. He described each as an example of Mr Khan’s conduct of the application for the ECRO [22].

The first was obstruction of service. The judge found it clear that Mr Khan had sought to make service of the application papers as difficult as he could. Mr Justice Twigger recorded that Mr Khan “returned unread the bundles which were taped to his door, for reasons which made no sense to me.” He also relied on the injunction against him as a reason for not collecting his post, and made service by email impossible [21].

The second was the pursuit of adjournments. Master Pester had refused Mr Khan’s adjournment application; Mr Khan sought to appeal that order and then applied again to the judge at the start of the hearing. The third concerned the basis of that renewed application. Mr Khan said he had not had time to prepare, yet once the adjournment was refused it became clear he had detailed notes already prepared [21].

The fourth was new evidence produced at the hearing, including a witness statement of Ms Baig, which had not been provided to the Claimants in advance. The fifth was Mr Khan’s assertion that PMCL’s other directors were unaware of the application. There was no evidence for it and the judge thought it unlikely to be correct. He treated it as illustrative of a propensity to think up arguments without notice [21].

The judge then addressed Mr Khan’s submission that the making of an ECRO does not, without more, justify indemnity costs. He did not decide the point. Even assuming Mr Khan was right, the five matters were examples of his conduct of the application. In the judge’s view they were, by themselves, well outside the ordinary and reasonable conduct of proceedings [22].

Two further steps completed the reasoning. The conduct would inevitably have caused the Claimants’ costs to increase, and it was “out of the norm” so as to justify an order for costs on the indemnity basis [22]. The award therefore stood on the conduct of the application, whatever the position on the ECRO alone.

The basis mattered at the assessment stage. On the indemnity basis, costs must still be reasonably incurred and reasonable in amount, but any doubt as to reasonableness is resolved in favour of the receiving party and there is no requirement to consider proportionality [24]. The judge repeated that proportionality was irrelevant when he stepped back to consider the costs overall [32].

Practical Implications

This is a first instance decision, but it illustrates a route to indemnity costs on a restraint order application that does not depend on the order itself. Because the judge assumed, without deciding, that an ECRO alone might not be enough, applicants should not treat the making of the order as automatically carrying the indemnity basis.

Solicitors acting for applicants should keep a contemporaneous record of the respondent’s conduct of the application: frustrated attempts at service, refused and renewed adjournment applications, material produced without notice, and unsupported points raised at the hearing. Witness evidence on service and a note of what happened at the hearing will make that record usable in costs submissions.

Submissions should tie each item of conduct to the test of something outside the ordinary and reasonable conduct of proceedings, and explain how it increased costs, as the judge did here [22]. The benefit is significant: on the indemnity basis, doubt as to reasonableness favours the receiving party and proportionality falls away [24].

For respondents, including litigants in person, obstructive tactics in resisting an application can carry a costs consequence of their own, separate from the merits of the order sought.

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