Amar Lodhia v Twelve Trees (Bromley-By-Bow) Management Company Limited & Ors

For indemnity costs, the court must apply its wide discretion and require conduct or circumstances taking the case out of the norm. Conduct-based cases require unreasonable conduct to a high degree, not moral condemnation. An application is totally without merit when it is bound to fail because no rational basis exists. Persistence for a civil restraint order is assessed from overall conduct, and earlier totally without merit applications may be considered. The inherent jurisdiction to prevent abuse permits referral of regulatory concerns for investigation without a prior finding of breach; self-referral does not bar court referral. A general civil restraint order may be preferred to a confidential undertaking where effective public restraint is necessary. Under the Civil Procedure Rules 1998, rule 44.12, a costs set-off ordinarily requires prior assessment.

After the claimant discontinued defamation and malicious falsehood proceedings, an earlier judgment, [2026] EWHC 1177 (KB), ordered him to pay the defendants' costs and make interim payments. This judgment determined the outstanding issues concerning the costs of the May hearing, the basis of assessment, a set-off application, applications said to be totally without merit, and whether a general civil restraint order should be made. It also considered referral of a barrister and his company to the Bar Standards Board, and referral of possible contempt of court to the Attorney General's Office. The central issues were the effect of the claimant's conduct on costs and restraint, and the court's jurisdiction to make regulatory and contempt referrals.

Disposition. The claimant was ordered to pay the costs of the 6 May hearing. The defendants' costs of the proceedings were ordered to be assessed on the indemnity basis. The set-off application was refused. A three-year general civil restraint order was made. The barrister and his company were referred to the Bar Standards Board, and the matter was referred to the Attorney General's Office for consideration of contempt proceedings and possible police referral.

1. The court applied the civil standard of proof to its factual findings. Contempt proceedings would require proof to the criminal standard. The referral therefore did not determine criminal liability.
2. Under the Civil Procedure Rules 1998, indemnity costs require a high hurdle. The conduct or circumstances must take the case out of the norm. Where conduct is relied on, unreasonable conduct to a high degree is sufficient; moral condemnation is unnecessary. Applying Thakkar v Mican [2024] EWCA Civ 552, the court found that the claimant's repeated hopeless applications, aggressive correspondence, reliance on false evidence and fabricated documents, and false costs declarations satisfied that test.
3. Applying Sartipi v Tigris Industries Inc [2019] EWCA Civ 225, an application is totally without merit where it is bound to fail because there is no rational basis for success. Persistence is assessed from overall conduct. Earlier totally without merit applications, including those underlying an earlier restraint order, may be considered, applying Society of Lloyds v Noel [2015] EWHC 734. The necessity of restraint includes protection of litigants and court resources, with regard to the restrained party's position, applying Chief Constable of Avon and Somerset v Gray [2019] EWCA Civ 1675.
4. Under rule 44.12 of the Civil Procedure Rules 1998, set-off required assessment of the costs payable in the other proceedings. The appropriate application was to the judge seized of those proceedings.
5. The court's inherent jurisdiction to prevent abuse of process was not confined by a rigid requirement that the practitioner had appeared at the hearing. Nor was a prior finding of regulatory breach required before referral for investigation. A self-referral was relevant but not conclusive. The court therefore referred the regulatory concerns, while leaving disputed facts and the scope of investigation to the regulator.
6. The evidence potentially disclosed false statements verified by statements of truth, false statements in court documents, doctoring of a court order and falsification of documentary evidence. The court referred those matters for consideration but did not itself determine contempt.

This was a first-instance costs and case-management judgment. The supplied text records an earlier judgment of the same court, [2026] EWHC 1177 (KB) , following discontinuance, and refusals of permission to appeal from that decision. No appellate history for the present judgment is stated.