Claimant’s Succesful Application for Order for No Order for Costs – Defendant’s Unreasonable Behaviour
In this case the Claimant issued a Part 8 claim seeking a declaration that she had a beneficial interest in the property of her cohabitee, who died intestate, as well as issuing a claim under the Inheritance (Provision for Family and Dependants) Act 1975. The Claimant sought to inspect the original deed. After the Claimant received the deed, following delayed responses from the Defendant, the Claimant discontinued her claim but made an application to disapply the rule as to costs when a Claimant discontinues.
The general rule where a Claimant discontinues their claim is that they will be liable for the Defendant’s costs incurred on or before the date on which the notice of discontinuance was served on the Defendant (CPR 38.6).
However, the court must also consider CPR 44.2 which requires the court to have regard to ‘all of the circumstances, including the conduct of the parties’. In order to depart from the regular rule in CPR 38.6, the Claimant should show a change in circumstances which was brought about by ‘some form of unreasonable conduct on the part of the defendant’ (Brookes v HSBC Bank Plc  EWCA Civ 354).
The change in circumstances in this case, it was held, was brought about by the unreasonable behaviour of the Defendant by not engaging properly with the Claimant in pre-action Correspondence. Specifically, it took the Defendant 18 months after the initial request to produce the deed for the Claimant’s inspection. Further, despite requesting the addresses of the second and third defendant’s in this matter, the first defendant failed to disclose this information. As such, the Claimant’s application for no order as to costs was successful.