Mark Randolph Dyer & Anor v Patricia Webb & Ors

Indemnity costs require conduct or circumstances taking the case out of the norm; dishonesty or moral blame is unnecessary. The assessment is directed to the conduct of the particular application, not the proceedings as a whole.

A finding that an application is totally without merit applies a separate test. The application must have been bound to fail. For a pre-action injunction, the applicant must establish urgency or that relief is otherwise desirable in the interests of justice. A totally without merit finding does not automatically require a civil restraint order. The court also held that, absent a proper legal basis, it could not impose an unusual unless order requiring proceedings to be issued by a specified date.

The applicants sought interim injunctive relief before issuing a substantive claim. The application concerned alleged harassment, objections to planning applications and related conduct by the respondents.

The court’s substantive interim-relief judgment was handed down on 10 July 2023. Interim relief was refused. This judgment determined consequential issues arising from that refusal: indemnity costs, recording the application as totally without merit, payment on account, pre-action costs and an unless order requiring future proceedings to be issued within a specified period.

1. Indemnity costs. The court applied the broad discretion under Civil Procedure Rules 1998, r 44.2. The relevant question was whether the conduct of the pre-action injunction application was outside ordinary and reasonable conduct, or otherwise out of the norm. The court distinguished the legal foundation for seeking an injunction from the manner in which the application was conducted.
2. The applicants failed to address the respondents’ Articles 10 and 11 rights, the enhanced requirements for relief affecting freedom of expression and assembly, and the applicable pre-action test. They also failed to make full, fair and accurate disclosure, maintained serious allegations without adequate evidence, relied on a non-independent expert, omitted the inspector’s decision upholding the high-hedges complaint, and advanced an overbroad and unworkable draft order. Taken cumulatively, that conduct was unreasonable and out of the norm. Indemnity costs were therefore ordered.
3. Totally without merit. Under Civil Procedure Rules 1998, r 23.12, the question was whether the application was bound to fail. The court treated this as distinct from the indemnity-costs assessment. The application was bound to fail because there was no urgency, the interests-of-justice basis had not been relied on and could not be established, the evidence was materially deficient, the interference with Convention rights was unjustified, and damages were an adequate remedy. The order was required to record that the application was totally without merit.
4. A totally without merit recording did not inevitably require a civil restraint order. The court considered such an order independently and declined to make one, treating the application as fundamentally misconceived rather than intrinsically malicious.
5. The court declined to award pre-action costs because no proper jurisdictional basis had been identified. It also held that it lacked legal power to impose the unusual unless order sought, requiring proceedings to be issued by a specified time after the refusal of interim relief. Any undue delay could instead be addressed, if appropriate, as an abuse of process.
6. The respondents were awarded £100,000 on account of costs. Permission to appeal against the totally without merit recording was refused because there was no real prospect of success and no other compelling reason.

The judgment followed the court’s substantive judgment on interim relief dated 10 July 2023, [2023] EWHC 1917 (KB), in the same litigation. Interim relief had been refused. This judgment determined consequential orders and subsequently refused permission to appeal against the totally without merit recording.