Lloyds TSB Bank Plc v Crowborough Properties Ltd & Ors

A court may revisit a costs order withdrawn before it has been entered. In deciding the appropriate order, the court may weigh the outcome on the pleadings as originally advanced, subsequent procedural indulgence, the parties’ conduct, and reasonable settlement offers. Where each side has contributed to the need for further proceedings, and the claimant succeeded only after amending its case following trial, the just order may be no order as to costs, including the costs of the costs hearing.

The court was asked to revisit a costs order made at an earlier hearing and to determine the costs of the present hearing. The earlier order had been withdrawn before entry. The claimant had lost on the pleadings as they then stood, but was later permitted to amend its case and obtained a reversal on the essential facts. The defendants’ case had also involved contentions which the court considered impossible to accept and apparently advanced with knowledge of their falsity. The issue was the appropriate allocation of costs in light of the procedural history, the parties’ conduct, and rejected offers.

1. The earlier costs order could be revisited because it had been withdrawn before it was entered.
2. The claimant had chosen to have its case tested and determined on the pleadings as they stood and had lost the trial in that form. Although the court had granted an amendment after trial because fairness required it, that indulgence did not justify ignoring the claimant’s original failure.
3. The claimant had nevertheless succeeded on the essential facts after the amendment. The defendants’ case included contentions which the court regarded as impossible to accept and as having been advanced with knowledge of their falsity. Those matters were relevant to the overall costs assessment.
4. There were elements of conduct deserving disapproval on both sides. Offers made by each side which ought to have been accepted had also been rejected.
5. The appropriate order, including the costs of the present hearing, was no order as to costs. The defendants were not ordered to pay costs because the claimant had needed to amend after trial.