Dos Santos Principles Considered | Trial Outcome Remains Relevant To Reserved Costs

Reserved costs of freezing and search order applications require the trial judge to consider overall justice, including trial outcomes. Successful applicants do not automatically recover costs where the respondent ultimately prevails, particularly where the application primarily targeted another party.

Reserved costs of interim applications determined at trial under CPR 44.2

GABLE INSURANCE AG (IN LIQUIDATION) V DEWSALL & OTHERS  [2025] EWHC 3399 (Ch)

In Gable Insurance AG v Dewsall & Others the court determined reserved costs following interim applications and a trial where the claimant succeeded against some defendants but failed against another. Applying Dos Santos v Unitel [2024] EWCA Civ 1109, the court held that the decision does not create a rule that successful applicants automatically recover costs of interim applications; where costs are reserved, the trial outcome remains relevant. The successful defendant (Mrs Dewsall) was awarded her costs of the main claim on the standard basis. For the search order, no order as to costs was made between the claimant and Mrs Dewsall: the application primarily targeted her husband and she succeeded at trial, but her inadequate disclosure contributed to the need for the order. For the second freezing order, a cross-order was made: Mrs Dewsall paid 50% of the claimant’s costs (standard basis), while the claimant paid 50% of her costs (indemnity basis) for unreasonably relying on a discredited investigative report. Mutual costs orders were set off.

Link to judgment on Bailii

The search order was obtained on a without notice basis. By the time of the hearing on the return date, a consent order had been agreed which dealt with the steps to be taken in relation to the analysis of the materials. There was therefore no hearing of a contested application. The Court of Appeal in Dos Santos did not suggest that, in such circumstances, it would generally follow that an award of costs would be made rather than costs being reserved. The purpose of reserving costs is so that the trial Judge can take an overall view of the justice of the case taking into account the result of the trial. Given that I do not consider the principles set out in Dos Santos to be engaged, it seems to me that the fact that Mrs Dewsall was the successful party is a relevant matter which I need to take into account.

Citations

Excelsior Commercial and Industrial Holdings Limited v Salisbury Hammer Aspden and Johnson (a firm) [2002] EWCA Civ 879 Indemnity costs may be awarded where there is conduct or circumstances taking the case outside the norm; the key question is whether the conduct was outside the ordinary and reasonable conduct of proceedings. Esure Services Limited v Quarcoo [2009] EWCA Civ 595 Costs on the indemnity basis may be awarded if a party’s conduct is outside the ordinary and reasonable conduct of proceedings, rather than whether it happens frequently. Franses v Al Assad [2007] EWHC 2442 (Ch) Breach of the duty of full and frank disclosure in a without notice freezing order application may justify an award of indemnity costs, and this applies even if a limited injunction is granted rather than the one originally sought. Henderson v Henderson [1843] 3 Hare 100 Allegations not raised at the return date of a without notice hearing may later be barred as an abuse of process under the principle from this case. Dos Santos v Unitel [2024] EWCA Civ 1109 The unsuccessful party in a contested interlocutory application may be ordered to pay the successful party’s costs where the application was fought on every point, as guided by CPR 44.2 and common practice in the Business and Property Courts.
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Key Points

  • Where costs of a contested interim application (such as for a freezing or search order) have been reserved to trial, the ultimate success or failure of the underlying claim remains a relevant factor for the trial judge when making the final costs order on that application. The general guidance that the unsuccessful respondent to an interim application should pay the applicant’s costs is not an inflexible rule in such circumstances. [16-19, 52]
  • A party’s failure to comply with its disclosure obligations, evidenced by the discovery of undisclosed relevant documents during the execution of a subsequent search order, is a relevant factor in the conduct of the parties that can be taken into account when determining costs, notwithstanding the prior provision of a signed disclosure certificate. [31, 64]
  • In determining the costs of a search order, the court may consider whether the applicant would have sought such a draconian order against a particular respondent had the claim been against that party alone, or whether the primary target was another party. This can affect the justice of ordering that respondent to pay the associated costs. [53-54, 60]
  • Where an applicant for a freezing injunction relies on a flawed investigative report to support the existence of undisclosed assets, and this aspect of the application fails, it may be appropriate to reduce the costs recoverable from the respondent proportionately. If the applicant’s continued reliance on such evidence is unreasonable, it may also justify an order for the applicant to pay a proportion of the respondent’s costs of resisting that aspect, potentially on the indemnity basis. [88, 91, 96, 100, 108-112]
  • The court may make a ‘cross-order’ for costs on a single interim application, whereby each party is ordered to pay a proportion of the other’s costs, to reflect the fact that each party achieved a measure of success and failure on different aspects of the application. [108, 122-123]

“Looking at all of the circumstances and taking account of the overall justice of the case, it would not in my view be right to order Mrs Dewsall to pay GIAG’s costs relating to the search order. She succeeded in defending the claim against her and it would be unjust for her to have to bear the costs of an exercise that, in all likelihood, would never have taken place had the claim been against her alone and not primarily against her husband.”

Key Findings In The Case

  • Mrs Dewsall, having successfully defended the claim brought against her, was awarded all of her costs in the main action on the standard basis. The court rejected GIAG’s argument for a reduction based on alleged conduct issues, finding none of the criticisms sufficient to justify a deduction in her recovery of costs [24, 36].
  • Although GIAG obtained a search order against Mrs Dewsall and discovered over 1,000 previously undisclosed documents on her devices, the judge declined to order her to pay any of GIAG’s costs relating to the search order and likewise declined to order GIAG to pay Mrs Dewsall’s costs. This was based on the finding that, had the claim been against her alone, a search order would likely not have been sought, and the primary target was clearly Mr Dewsall [53–60, 69].
  • GIAG was awarded only 50% of its costs in relation to the second worldwide freezing order against Mr and Mrs Dewsall and Horatio, because the application was largely based on a flawed investigative report regarding undisclosed offshore assets. The court further ordered GIAG to pay 50% of Mrs Dewsall’s costs relating to that application on the indemnity basis, holding that GIAG’s continued reliance on the discredited report was unreasonable by the return date hearing [91, 104, 108–112, 123].
  • Mr Dewsall was ordered to pay GIAG’s costs of the successful contempt application relating to refusal of access to Weald Hall, but with a 50% reduction due to the premature and overly aggressive approach taken by GIAG in pursuing a bench warrant rather than first seeking a standard enforcement route. Costs were awarded on the standard rather than indemnity basis given mitigating circumstances, including confusion over separate possession proceedings [76–78].
  • Horatio, although non-participating throughout the proceedings, was ordered to pay GIAG’s costs of the search order on the standard basis and 50% of the costs of the second worldwide freezing order. The judge found that non-participation alone did not justify indemnity costs, but GIAG’s success in those applications warranted a proportionate award [44, 45, 95, 121].

"GIAG's failure to recognise this by the time of the return date hearing at the end of February 2025 was, in my view, unreasonable in the light of the questions raised about the report by the Judge in January 2025 and takes its conduct sufficiently outside the norm to justify an award of indemnity costs in respect of this aspect."

The High Court’s decision in Gable Insurance AG v Dewsall & Ors [2025] EWHC 3399 (Ch) addresses the costs consequences of interim applications where a claimant succeeds against some defendants but fails against others, clarifying that Dos Santos v Unitel does not create an automatic rule that successful applicants recover their costs.

Background

The claimant, Gable Insurance AG (in liquidation) (“GIAG”), brought proceedings against four defendants: Mr William Dewsall (First Defendant), Mr Michael Hirschfield (Second Defendant), Mrs Judith Dewsall (Third Defendant), and Horatio Risk Consulting LLP (Fourth Defendant). Following a two-week trial in July 2025, judgment was handed down on 5 September 2025. A consequentials hearing on 27-28 November 2025 addressed numerous issues, with many rulings embodied in a sealed order dated 5 December 2025 [§2]. However, the costs of the claim against Mrs Dewsall and several reserved costs issues from interim applications required further determination [§3].

The reserved costs related to: (1) a worldwide freezing order against Mr Dewsall granted in July 2023 and continued in August 2023 [§3.1]; (2) a search order against Mr Dewsall, Mrs Dewsall, and Horatio in July 2024, with subsequent return date hearings and privilege issues in September 2024 and February 2025 [§3.2]; and (3) a second worldwide freezing order against Mr Dewsall, Mrs Dewsall, and Horatio granted in November 2024, continued in an amended form in January 2025, and replaced by a domestic freezing order in March 2025 [§3.3]. Mrs Dewsall had appealed unsuccessfully to the Court of Appeal against the domestic freezing order and was ordered to pay the costs of that appeal [§3.3].

Costs Issues Before the Court

The court was required to determine the appropriate costs orders for multiple discrete stages of the litigation. The specific issues were: (1) the costs of GIAG’s claim against Mrs Dewsall; (2) the reserved costs of the first worldwide freezing order application; (3) the costs of the search order application and its execution against each relevant defendant; (4) the costs of a contempt/bench warrant application related to the search order; and (5) the costs of the second worldwide freezing order application [§3-4].

A key legal context was the applicability of the Court of Appeal’s guidance in Dos Santos v Unitel [2024] EWCA Civ 1109 on costs for contested interim applications [§13-19]. The Chancellor observed that a party who contests an application “tooth and nail on every point” should generally be ordered to pay costs [§13]. However, the court noted Mr Justice Henshaw’s observation that Dos Santos does not lay down a “firm rule” that applicants always get their costs: where the respondent merely puts in economical evidence, the position may differ [§17].

The Parties’ Positions

GIAG’s Position: GIAG accepted Mrs Dewsall was the successful party on the main claim but argued for a 25-40% reduction in her costs due to alleged litigation misconduct, including failure to engage in ADR, filing an inadequate defence, and deficient disclosure [§21-23]. GIAG sought its costs of all interim applications. For the first freezing order and search order against Mr Dewsall and Horatio, it sought indemnity costs [§37, §43]. For the search order against Mrs Dewsall, it sought its costs on an indemnity basis, arguing the trial outcome was irrelevant following Dos Santos [§47, §49]. For the contempt application, it sought costs against Mr Dewsall [§70]. For the second freezing order, it sought costs against all defendants with a proposed 25% reduction to reflect failure to trace overseas accounts, primarily on an indemnity basis [§87-88].

Mrs Dewsall’s Position: Mrs Dewsall sought her costs of the main claim on the indemnity basis, with no reduction [§22]. She opposed paying any of GIAG’s costs for the search order or the second freezing order [§48]. Instead, she sought her own costs of those applications, also on an indemnity basis, citing alleged breaches of duty by GIAG in obtaining the orders and reliance on a discredited investigative report [§48, §89, §97]. She argued the principles in Dos Santos did not apply where costs had been reserved and she was ultimately successful at trial [§16].

Other Defendants: Mr Dewsall and Horatio did not appear or make representations on costs [§37, §43-44, §89].

The Court’s Decision

The court applied the discretion under CPR 44.2, with the general rule that the unsuccessful party pays costs [§6]. It considered when conduct might justify indemnity costs, applying the test of whether conduct takes the case “out of the norm” [§7].

1. Costs of GIAG’s Claim Against Mrs Dewsall

Mrs Dewsall was awarded all her costs of the main claim on the standard basis [§36]. The court rejected GIAG’s arguments for a reduction. The ADR complaint failed because the key correspondence focused on Mr Dewsall, and GIAG made no clear separate proposal to resolve the claim against Mrs Dewsall [§25-28]. The defence complaint was rejected as GIAG had itself opposed Mrs Dewsall’s late amendment application on the basis her existing pleading was sufficient [§29]. The disclosure deficiencies were more appropriately factored into the search order costs [§31]. The allegations about assisting Mr Dewsall to circumvent the first freezing order were left for a potential separate claim [§32-33]. An indemnity basis award was refused as complaints about GIAG’s conduct were better considered within the specific interim application costs [§35].

2. First Worldwide Freezing Order (Mr Dewsall)

GIAG was awarded its reserved costs against Mr Dewsall on the indemnity basis [§40-42]. The order was successfully obtained and continued, subject to undertakings [§38]. Indemnity costs were justified because Mr Dewsall’s subsequent failure to disclose assets, uncovered via the search order, took his conduct “out of the norm” [§42].

3. Search Order Costs

The search order costs (excluding the bench warrant application) totalled approximately £4.8 million, comprising: obtaining the order (£410,000), executing the search (£850,000), and subsequent review of materials including privilege analysis (£3.56 million) [§43].

Mr Dewsall: Ordered to pay GIAG’s costs on the indemnity basis [§45]. This was due to clear evidence of destruction and concealment of documents, obstruction of the search, and threats against individuals carrying out the search [§45].

Horatio: Ordered to pay GIAG’s costs on the standard basis [§46]. Its complete non-engagement did not, of itself, justify indemnity costs; the court was not referred to any authority supporting that proposition [§46].

Mrs Dewsall: No order as to costs between GIAG and Mrs Dewsall [§69]. The court held it would be unjust to order her to pay costs for an exercise primarily targeting Mr Dewsall — over 90% of documents recovered belonged to him [§54]. GIAG’s own costs schedules showed search order work being incurred in March 2024, before Mrs Dewsall was even joined as a party [§55]. Had the claim been against her alone, any perceived inadequacy in disclosure would more likely have been addressed by specific disclosure application rather than a search order [§53].

Conversely, GIAG was not ordered to pay Mrs Dewsall’s costs because her initial disclosure was inadequate — over 1,000 previously undisclosed documents were found on her devices [§53, §63]. She also bore some responsibility for the blanket assertion of privilege (made by Mr Dewsall purportedly on behalf of both defendants) that increased costs [§58-59, §65].

4. Contempt Application/Bench Warrant

Mr Dewsall: Ordered to pay 50% of GIAG’s costs on the standard basis [§76]. The 50% reduction reflected the court’s view that seeking a bench warrant was “somewhat precipitate” and a “heavy handed and inappropriate” mechanism for securing compliance with the search order [§74, §76]. The court noted that Mr and Mrs Dewsall had been in court the same day for separate possession proceedings and believed the search team had come to evict them [§77]. Indemnity costs were refused as Mr Dewsall would be “punished twice for the same offence” if indemnity costs were awarded given other indemnity costs orders [§78].

Mrs Dewsall: No order as to costs [§79-80]. The evidence showed Mr Dewsall took the lead in refusing access [§73, §79].

5. Second Worldwide Freezing Order

The application was primarily triggered by a belief that Mr Dewsall had overseas accounts, based on an investigative report [§83-84]. When GIAG attempted to enforce the worldwide freezing order in various jurisdictions, none of the accounts existed [§84]. A BVI court was subsequently highly critical of the report, finding the investigator had no personal information about the accounts but only hearsay evidence [§86].

Mr Dewsall: Ordered to pay 50% of GIAG’s costs on the indemnity basis [§91, §93]. The 50% reduction reflected GIAG’s failure to establish overseas accounts. Indemnity costs were justified by Mr Dewsall’s conduct: failing to disclose assets, failing to account for expenditure in breach of the first freezing order, and attempting to avoid service by denying he was Mr Dewsall [§92-93].

Horatio: Ordered to pay 50% of GIAG’s costs on the standard basis [§95].

Mrs Dewsall: A cross-order was made [§104, §108-109]. She was ordered to pay 50% of GIAG’s costs on the standard basis, applying Dos Santos as she had fought the application and appealed unsuccessfully to the Court of Appeal [§96, §104]. However, GIAG was ordered to pay 50% of Mrs Dewsall’s costs on the indemnity basis [§108-109]. This reflected the court’s finding that it “ought to have been apparent” to GIAG by the return date hearing in February 2025 that the investigative report was unreliable, following questions raised at the January 2025 hearing [§111-112]. GIAG’s failure to recognise this was unreasonable and took its conduct “sufficiently outside the norm” to justify indemnity costs [§112].

The court directed that where costs orders were mutual, they should be set off [§125]. Interest on costs and payments on account were to be agreed or determined subsequently, along with the disposal of proceeds from Weald Hall held in court [§126-129].

This judgment establishes an important qualification to Dos Santos:

  1. If you contest and lose an interim application → expect to pay costs (per Dos Santos)
  2. If costs are reserved (whether by consent or court order) → the trial judge considers overall justice including trial outcome
  3. If you are a successful defendant and the application primarily targeted another party → you may escape a costs order entirely
  4. If you are an applicant relying on evidence later discredited → you risk indemnity costs against you
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GABLE INSURANCE AG V DEWSALL & OTHERS [2025] EWHC 3399 (CH) | DEPUTY JUDGE ROBIN VOS | CPR 44.2 | COSTS ON THE INDEMNITY BASIS | COSTS ON THE STANDARD BASIS | DOS SANTOS V UNITEL [2024] EWCA CIV 1109 | EXCELSIOR COMMERCIAL AND INDUSTRIAL HOLDINGS LIMITED V SALISBURY HAMMER ASPDEN AND JOHNSON [2002] EWCA CIV 879 | ESURE SERVICES LIMITED V QUARCOO [2009] EWCA CIV 595 | FRANSES V AL ASSAD [2007] EWHC 2442 (CH) | HENDERSON V HENDERSON [1843] 3 HARE 100 | FULL AND FRANK DISCLOSURE | WITHOUT NOTICE APPLICATION | SEARCH ORDER | WORLDWIDE FREEZING ORDER | DOMESTIC FREEZING ORDER | CONTEMPT APPLICATION | BENCH WARRANT | CONDUCT OF THE PARTIES | INTERIM COSTS | RESERVATION OF COSTS | SUCCESSFUL PARTY | PAYMENT ON ACCOUNT | ABUSE OF PROCESS | COSTS AFTER TRIAL | PROPORTIONALITY OF COSTS | COSTS REDUCTION FOR CONDUCT | FAILURE TO ENGAGE IN ADR | INADEQUATE DEFENCE | INADEQUATE DISCLOSURE | ASSERTION OF PRIVILEGE | COSTS OF INTERLOCUTORY APPLICATIONS | JEWELLERY DISCLOSURE | SET-OFF OF COST ORDERS | BVI COURT CRITICISM OF EVIDENCE | INVESTIGATIVE REPORT EVIDENCE | COSTS CONSEQUENCES OF INTERIM RELIEF | ROLE OF RETURN DATE JUDGE | COSTS OF DOCUMENT REVIEW POST-SEARCH ORDER | COSTS IMPLICATIONS OF LITIGATION STRATEGY | DISCRETION TO AWARD COSTS.