Contantine v Christoffer

There are no absolute rules governing costs. When a claimant discontinues, the court must exercise its broad discretion under section 51 of the Supreme Court Act 1981, subject to the usual starting point in CPR 38.6. The court may consider all relevant circumstances, including an inconclusive jury trial, the parties’ positions on a bare-majority verdict, settlement considerations and proportionality.

A judge need not investigate why proceedings were discontinued. Discontinuance speaks for itself. A claimant’s right to discontinue does not make a costs order unfair or contrary to Article 6. An indemnity costs order remains discretionary, and appellate intervention requires a recognised error in the exercise of that discretion.

The claimant brought libel proceedings based on a letter sent to the commissioning editor of Channel 4. The claim was tried before Morland J and a jury in 2000, but the jury disagreed. The claimant discontinued before the scheduled retrial in October 2001.

Eady J ordered the claimant to pay the defendant’s costs on an indemnity basis. The claimant sought permission to appeal, arguing that the defendant’s choice of jury trial, refusal to accept a bare-majority verdict, the claimant’s reasons for discontinuing, the overriding objective, the defendant’s conditional-fee arrangement and Article 6 should have led to a different order. The central issue was whether those matters disclosed an error of principle or a basis for appellate intervention.

1. Application refused. The renewed application for permission to appeal was dismissed.
2. CPR 38.6 establishes the usual position that a claimant who discontinues is liable for the defendant’s costs incurred before notice of discontinuance, unless the court orders otherwise. The ultimate decision remains a matter of broad discretion under section 51 of the Supreme Court Act 1981.
3. There is no absolute rule about costs. All the circumstances may be considered and given such weight as the judge thinks fit. The inconclusive jury trial was an unfortunate risk inherent in jury trial and was nobody’s fault. The defendant was not to be penalised for declining to accept a smaller majority than the majority contemplated by section 17(1) of the Juries Act 1974.
4. The judge was not required to investigate why the claimant discontinued. The fact of discontinuance spoke for itself, whether characterised as an acknowledgement of defeat, a loss of will to continue, or otherwise.
5. The claimant’s CPR and Article 6 arguments did not alter the result. A right to discontinue may coexist with liability for the successful defendant’s costs. Trial by jury did not offend Article 6, and the possibility of a disagreement was one consequence of that mode of trial.
6. The conditional-fee arrangement had a practical effect because the defendant’s legal team became entitled to payment, but it did not alter the proper costs order. An indemnity order was within the judge’s discretion. Under CPR 44.4, costs could still be disallowed if unreasonably incurred or unreasonable in amount. No sufficient reason for appellate interference was shown.

• Court of Appeal (Civil Division): The renewed application for permission to appeal was refused. The court upheld the discretionary indemnity costs order made below.
• Queen’s Bench Division: Eady J ordered the claimant to pay the defendant’s costs on an indemnity basis following discontinuance.
• The underlying libel proceedings had previously resulted in a disagreement by the jury before Morland J.