Ineos Upstream Limited v Joseph Boyd & Anor.

Costs are determined by a broad, fact-sensitive discretion. The court must first identify the overall successful or more successful party, then decide whether the circumstances justify departing from the usual order. That assessment requires a common-sense, broad-brush and pragmatic evaluation of the substance and reality of the outcome, rather than a granular or points-based comparison of every issue.

Public importance, intervention to protect fundamental rights and assistance given to the court may be relevant factors, but they do not create immunity from adverse costs or an automatic entitlement to costs. Indemnity costs require conduct outside the norm. Proceedings with no remaining useful purpose, and which disclose no legally recognisable claim, may be struck out under the court’s case-management and procedural powers.

The claimants had obtained five interim injunctions in 2017 against categories of persons unknown in connection with proposed fracking sites. Joseph Boyd and Joseph Corré participated as defendants and applied to discharge or vary the injunctions.

Morgan J continued four injunctions in modified form and discharged one, making no order as to costs: [2017] EWHC 3427 (Ch). The Court of Appeal later discharged the injunctions concerning two categories, dismissed those claims and maintained the remaining injunctions pending reconsideration of issues under section 12(3) of the Human Rights Act 1998: [2019] EWCA Civ 515. The remitted issues were never determined. The remaining injunctions were later discharged following a material change in circumstances, and the claims were dismissed or discontinued.

The court reconsidered the remitted costs order, decided whether indemnity costs were justified, and determined what should happen to the proceedings.

1. The court exercised its costs discretion afresh. The defendants were the overall successful or more successful parties. Three injunctions had been discharged and the remaining injunctions had been modified, then ultimately discharged, with the associated claims dismissed or discontinued. The claimants’ failure to relist the remitted issues, and the resulting delay and findings concerning their conduct, also weighed against them.

2. The assessment was not a granular, points-based exercise. The court had to stand back and evaluate the substance and reality of the outcome. The defendants’ participation materially assisted the court and contributed to the clarification and narrowing of the injunctions, but the public importance of the proceedings did not itself justify departing from the usual costs rules.

3. The claimants were ordered to pay the defendants’ costs of responding to the injunction applications, including the defendants’ own application costs, on the standard basis, subject to detailed assessment. The application for indemnity costs was refused. The claimants’ conduct in obtaining the injunctions was not shown to fall outside the norm, and later conduct had either already been sanctioned or concerned different costs stages.

4. The court held that the proceedings no longer served any useful purpose, disclosed no legally recognisable claim against the participating defendants and were abusive to maintain. The claim was therefore to be struck out under CPR 3.3, CPR 3.4(2) and CPR 3.1(2)(m). The parties were directed to agree an order and the remaining costs consequences, failing which those matters would be determined at a consequentials hearing or on paper.

• High Court (Chancery Division) Morgan J continued four injunctions and discharged one, making no order as to costs: [2017] EWHC 2945 (Ch) and [2017] EWHC 3427 (Ch).
• Court of Appeal Discharged the injunctions concerning D3 and D5, dismissed those claims and maintained the injunctions concerning D1 and D2 pending reconsideration of section 12(3) of the Human Rights Act 1998: [2019] EWCA Civ 515.
• High Court HHJ Klein later discharged the remaining injunctions, ordered costs in favour of D7 in relation to later applications, and did not strike out the claims: [2022] EWHC 684 (Ch).