Xiuling Wei & Ors v Jingping Long & Ors

A claimant who discontinues is generally liable for the defendant’s costs under Civil Procedure Rules 1998, rule 38.6. Departure requires a good reason. Likely success, practical or financial reasons, or achievement of an interlocutory objective will not ordinarily suffice.

The claimant will usually need to show a change of circumstances not caused by the claimant and unreasonable conduct by the defendant which justifies departure. The costs court should not determine disputed merits after discontinuance, although it may consider whether the claim plainly would have failed and whether the defendant acted unreasonably.

Success on disclosure or removal applications does not necessarily justify depriving the defendant of the costs of the claim as a whole.

The claim concerned alleged harassment, libel, malicious falsehood and privacy-related causes of action arising from internet posts. The claimants discontinued against the third defendant, an operator of one of the websites, after the defendant had deleted posts and provided user information following court-ordered disclosure.

The remaining issue was whether to depart from the general rule in Civil Procedure Rules 1998, rule 38.6, under which a discontinuing claimant is liable for the defendant’s costs up to service of the notice of discontinuance. The claimants relied on their practical achievements, the defendant’s alleged unreasonable conduct and the merits of the claim. The court also considered summary assessment and payments on account.

1. Costs on discontinuance. The claimants had not shown a good reason to displace the presumption in Civil Procedure Rules 1998, rule 38.6. Their discontinuance therefore made them liable for the third defendant’s costs incurred up to 2 May 2025.
2. The claimants’ receipt of information and deletion of posts did not justify departure. Those matters concerned particular applications and did not establish success on the claim as a whole. The defendant had acted promptly and responsibly in responding to complaints and in requiring a court order before disclosing user data. Its conduct was not unreasonable.
3. The claimants’ likely success at trial was not, by itself, sufficient. Conversely, it was relevant that the claim against the third defendant would probably have failed. Under section 10 of the Defamation Act 2013, the court would probably have lacked jurisdiction because the claimants could reasonably sue the identified author, D1. The third defendant also had a prima facie defence under section 5(2), and sections 5(3) and 5(4) would not have defeated it because the claimants could identify and had sued the author.
4. The section 13 application could not materially improve the position. Section 13(1)(a) permits removal of a statement following judgment in an action for defamation, but the additional posts relied on did not feature in the claim and the pleaded posts had already been deleted.
5. Assessment. Summary assessment of the third defendant’s claim costs was inappropriate. The litigation involved several hearings, applications, three firms and detailed objections requiring directions and probably a further hearing. The costs were therefore to be subject to detailed assessment on the standard basis if not agreed.
6. The claimants were also ordered to pay the costs of the 12 June 2025 hearing. Payments on account of £72,805.80 and £19,776 were ordered by 4.30 pm on 29 September 2025. The sums reflected a reasonable estimate with an allowance for reductions on detailed assessment.