CR Construction (UK) Limited v Barclays Bank PLC (Costs and Stay)

An intervener directly affected by an injunction application may obtain its reasonable costs where it is properly joined and materially assists the court. The award is not automatically equivalent to the costs of a second defendant: recoverable costs should exclude unnecessary duplication and reflect the work reasonably required to protect the intervener’s interests. Indemnity costs require conduct or circumstances taking the case outside the norm. A claim is not rendered indemnity-costs material merely because it ultimately fails, particularly where its lack of merit was not obvious from the outset and settlement negotiations were not unreasonable. A stay of an order refusing an injunction is inappropriate where it would achieve nothing and cannot operate as an injunction by another route.

The claimant applied for an injunction restraining Barclays Bank PLC from paying under a performance bond. Northern Gateway (FEC) No. 7 Limited, the beneficiary and employer under the underlying building contract, intervened. The substantive injunction application was refused in the judgment reported at [2026] EWHC 202 (TCC).

The court then determined consequential matters: whether the employer should recover its intervention costs, whether the claimant should pay the bank’s costs on the standard or indemnity basis, the amount of costs to be summarily assessed, and whether enforcement should be stayed pending a possible appeal.

1. Employer’s costs. The employer was directly affected by the proposed injunction because it would have been unable to receive money payable under the performance bond. It was therefore entitled to seek joinder. Since it filed evidence, attended the hearing and was able to address the underlying repudiation and set-off issues, it was entitled in principle to its reasonable costs. The court adopted the principles summarised in International Game Technology v The Gambling Commission [2023] EWHC 1961 (TCC), including those derived from Bolton MBC and Others v Secretary of State for the Environment [1995] 1 WLR 1176 and Bechtel Ltd v High Speed Two (HS2) Ltd v Balfour Beatty Group Ltd [2021] EWHC 458 (TCC).
2. The employer was not to be treated as an automatic second defendant. Its recoverable costs were limited to reasonable work reading into the case, deciding how to respond, providing proportionate evidence and submissions, and attending to address matters concerning the building contract and underlying disputes which the bank could not adequately cover.
3. Basis of the bank’s costs. Indemnity costs require conduct or circumstances taking the case outside the norm, as recognised in Excelsior Commercial & Industrial Holdings Ltd v Salisbury Hamer Aspden & Johnson (Costs) [2002] EWCA Civ 879. Although persistence with a hopeless case despite reasonable offers may justify indemnity costs, as discussed in Noorani v Calver [2009] EWHC 592 (QB) and Lejonvarn v Burgess [2020] EWCA Civ 114, the claimant’s case was not obviously hopeless when brought. Its settlement conduct was not completely unreasonable or intransigent. The bank therefore received standard-basis costs.
4. The bank’s costs were summarily assessed at £75,000 plus VAT. The employer’s costs were assessed at £75,000, with no VAT claimed.
5. Stay. A stay pending appeal was refused. The only substantive order was refusal of the injunction; staying that order could not impose an injunction indirectly. No sufficient prejudice or other basis for a stay was established.

Not stated in the judgment.