Bailey & Anorv Glaxosmithkline UK Ltd

The unsuccessful party will ordinarily pay the successful party’s costs. A defendant is not generally penalised in costs merely because it did not seek summary disposal of a weak claim. The responsibility for evaluating and discontinuing an unmeritorious claim rests primarily with the claimant who brought and continues it.

Indemnity costs may be ordered where a reasonable claimant should have concluded that the claim was so speculative, weak or thin that it should no longer be pursued. Pursuing an arguable claim will not usually suffice, but conduct which is unreasonable to a high degree and out of the norm may justify indemnity costs. A payment on account should ordinarily be ordered unless there is good reason not to.

The claimants brought long-running product-liability proceedings alleging that the antidepressant Seroxat was defective under the Consumer Protection Act 1987. Earlier case-management decisions confined the pleaded case to a comparative “worst in class” case concerning discontinuation symptoms. The Court of Appeal dismissed an appeal against that scope ruling and confirmed that a wider risks-and-benefits case could not be introduced.

Shortly before the hearing of the first generic trial issue, the claimants submitted to judgment for the defendant. The remaining questions concerned whether the defendant should receive its costs, whether costs should be assessed on the indemnity basis from 21 June 2018, and whether a payment on account should be ordered.

1. Costs of the action. The general rule in CPR 44.2(2)(a) applied. The claimants’ application for no order as to costs was refused. Responsibility for evaluating and managing the merits of the claim rested with the claimants’ legal team. The defendant had no general obligation to seek summary disposal merely because it considered the claim weak.
2. The court was not justified in penalising the defendant for failing to make an earlier summary judgment application. Such an approach could encourage unnecessary applications and conflict with the overriding objective. The defendant had legitimate reasons for allowing the litigation to proceed, including uncertainty in the law and a desire to have the issues determined comprehensively.
3. Indemnity costs. The appropriate question was whether, after commencement, a reasonable claimant would have concluded that the claim was so speculative, weak or thin that it should no longer be pursued. Pursuit of a weak but arguable claim would not ordinarily justify indemnity costs, but conduct unreasonable to a high degree and out of the norm could do so.
4. Following the judgment in Colin Gee and others v Depuy International Limited, the claimants’ case was unarguable because it remained confined to a “worst in class” case while the applicable approach required a holistic assessment of defect under section 3 of the Consumer Protection Act 1987. The subsequent attempt to advance a free-standing or wider risks-and-benefits case was inconsistent with unappealed rulings and wasted trial costs.
5. The claimants were ordered to pay the defendant’s costs on the standard basis until 21 June 2018 and on the indemnity basis thereafter. Appeal costs were to be assessed on the standard basis. A payment on account of £4.5 million was ordered under CPR 44.2(8).

The judgment records earlier procedural decisions in the same litigation, including [2016] EWHC 178 (QB), [2019] EWHC 337 (QB), [2019] EWHC 1167 (QB) and the Court of Appeal judgment at [2019] EWCA Civ 1924. Those decisions confined the claimants’ case and dismissed their appeal. The present judgment determined the consequential costs issues.