Griffin & Anor v Smith & Ors

On discontinuance, the usual order under Civil Procedure Rules 1998, rule 38.6, is that the claimant pays the defendants’ costs. Departure from that rule requires circumstances beyond the ordinary saving of costs and court time that follows discontinuance. The court must assess all matters relied on and decide whether they justify an alternative order. Frustration of the litigation by a defendant’s wrongful conduct may be relevant, but it will not ordinarily justify relief where the claimant continued the proceedings for a substantial period and the other defendants remained entitled to defend them. Different costs orders may be made for different defendants where their positions and conduct materially differ. A wasted costs order requires improper, unreasonable or negligent conduct and must also be just.

The claimants, office-holders of an unincorporated political association, brought proceedings concerning the alleged misuse of its membership list and related matters. Interim relief was granted, and some claims were disposed of by consent or following a jurisdiction challenge. After a defendant published the membership list online, the claimants accepted that a permanent injunction had become unavailable, but continued the action for approximately two years before applying for permission to discontinue.

The claimants sought discontinuance with no order as to costs. The defendants consented to discontinuance but sought their costs. The court also considered whether the claimants’ solicitors should pay wasted costs arising from a postponed pre-trial review.

1. Discontinuance and costs. Permission to discontinue was required because an interim injunction had been granted, under CPR 38.2(2). Under CPR 38.6, the burden lay on the claimants to justify an alternative costs order.
2. The court applied the approach in Re Walker Wingsail Systems plc [2006] 1 WLR 2194 and Messih v McMillan Williams [2010] EWCA Civ 844. It had to consider all the circumstances relied on. The ordinary saving of costs and court time caused by discontinuance was insufficient by itself; something more was required.
3. The fifth defendant’s publication of the membership list was wrongful and had frustrated the purpose of the injunction claim. It nevertheless did not justify relieving the claimants of the costs of the first, second, fourth and sixth defendants. The publication occurred about two years before discontinuance, those defendants were not shown to have participated in it, and they were entitled to proceed to trial on their pleaded defences.
4. The delivery-up claims provided no sufficient basis for an alternative order. The relevant defendants had delivered up the chattels promptly, and a letter before action would probably have avoided proceedings on that issue. In any event, the explanation did not justify costs incurred after the relevant order.
5. Different considerations applied to the third and fifth defendants. The fifth defendant’s conduct had frustrated the action and both defendants were bankrupt; the third defendant’s costs had vested in the Official Receiver, who had not participated. The claimants were therefore not required to pay costs attributable additionally to those defendants. They were ordered to pay the other defendants’ costs on the standard basis if not agreed.
6. The court declined to make a wasted costs order against the claimants’ solicitors. Although there had been fault in failing earlier to discontinue or properly prepare for the pre-trial review, the evidence did not establish improper, unreasonable or negligent conduct by the new solicitors, nor was such an order just.

First-instance decision. No earlier appellate decision is stated in the judgment.