Indemnity Costs Awarded Where Proprietary Estoppel Claim Pursued As “Anvil For Settlement” Against Elderly Mother
Master Bowles awarded indemnity costs where litigation was pursued as an “anvil for settlement” through invented assurances contradicted by contemporaneous documents, whilst finding that mediation obstacles created by both parties did not justify costs penalties against successful defendants.
Where a party has overwhelmingly succeeded in litigation, the court will not reduce their costs recovery to reflect the opposing party’s minor or peripheral success on a discrete issue that had no significant bearing on the overall costs of the proceedings. [10-16]
A successful party will not be penalised in costs for pre-litigation conduct that the court has determined to be lawful, even if that conduct was ill-advised, provided it did not cause or materially contribute to the failure to settle the underlying dispute. [17-25]
A failure to respond to a request to mediate is not automatically unreasonable giving rise to a costs penalty; the court will assess the particular facts, including whether the requesting party imposed unreasonable conditions on the mediation and whether the overall circumstances rendered mediation impractical. [32-34, 76-78, 101-106]
There is no general obligation for a party to engage in settlement negotiations based on offers that are, in light of the eventual outcome, wholly unrealistic and substantially less favourable than the result achieved at trial. [69-75]
Indemnity costs may be awarded where a claim is not merely weak but is advanced on the basis of evidence that is inconsistent with contemporaneous documentation and is found to have been ‘constructed’ or concocted for the purposes of the litigation, particularly when combined with conduct suggesting the claim is pursued as a tactical instrument to pressure settlement. [40-44, 48-54]
