Hewson v Wells & Ors

Under CPR 38.6, discontinuance normally makes the claimant liable for the defendant’s costs. The claimant bears the burden of showing a good reason to depart from that rule. Relevant considerations under CPR 44.2 include pre-action conduct, whether issues were reasonably raised or contested, and how the proceedings were conducted.

A change of circumstances will generally justify departure only where it was caused by unreasonable defendant conduct. The court may consider whether the claimant obtained in substance what was sought, without deciding the merits of the discontinued claims. Where the evidence remains relevant to continuing proceedings, the appropriate order may be that the discontinued-claim costs are costs in the case.

The claimant, the longstanding partner of the deceased, brought proceedings concerning the beneficial ownership and occupation of a property, proprietary or promissory estoppel, estate representation, and provision under the Inheritance (Provision for Family and Dependants) Act 1975.

After the defendants produced a previously undisclosed deed concerning the property, the claimant discontinued parts of the claim and applied for no order as to costs. The issue was whether the default costs rule under CPR 38.6 should be displaced, and if so what costs order should be made.

1. Application granted in part. The default rule in CPR 38.6 was disapplied, but the court ordered that the costs of the discontinued claims be costs in the case.
2. CPR 38.6 creates a presumption that a claimant who discontinues pays the defendant’s costs. The claimant must show a good reason for departing from that presumption. The six principles summarised in Brookes v HSBC Bank Plc [2011] EWCA Civ 354 apply. Practical, pragmatic or financial reasons alone are insufficient, and unusual circumstances and cogent reasons are ordinarily required.
3. Under CPR 44.2, the court considers all the circumstances, including conduct before and during proceedings, compliance with pre-action practice, the reasonableness of raising or contesting issues, and the manner in which the case was pursued. The court may consider whether the claimant achieved in substance what was sought and whether defendant conduct was unreasonable, without determining whether the substantive claim would have succeeded.
4. The production of the deed was a change in circumstances justifying discontinuance of the claims to a beneficial interest. Its production was not prevented from being a change of circumstances merely because the claimant had signed it many years earlier. The delay in producing it, despite repeated requests and the defendants’ possession of relevant files, amounted to unreasonable conduct.
5. The claimant’s delay of about three months after receiving a complete copy, during which witness statements were exchanged, weighed against awarding costs in her favour. However, much of the evidence relevant to the discontinued claims remained relevant and admissible in the continuing claim under the 1975 Act. That made an order requiring the claimant to pay the defendants’ costs inappropriate.

not stated in the judgment.