Lejonvarn v Burgess & Anor [2020] EWCA Civ 114 (06 February 2020)

Lejonvarn v Burgess & Anor [2020] EWCA Civ 114 (06 February 2020)

The Court of Appeal held that from one month after its earlier judgment, the respondents' claims were speculative or weak and should not have been pursued. Their continued pursuit was out of the norm and justified an order for indemnity costs from that date. The respondents' failure to accept and beat the appellant's Part 36 offer, when seen against the background of these claims, further supported indemnity costs. The judge erred in principle by not addressing whether the claims had become speculative or weak and by focusing on whether they were hopeless in hindsight.

Citation
[2020] EWCA Civ 114
Parties
Appellant/defendant: Ms Basia Lejonvarn; Respondents/claimants: Mr Peter Burgess & Mrs Lynn Burgess
Jurisdiction
England and Wales
Judgment Date
06 February 2020
Procedural Posture
Appeal (civil) / Appeal From Technology and Construction Court on Costs Order
Outcome
Appeal allowed in part
Legal Topics
Costs, Indemnity Costs, Standard Costs, Part 36 Offers, Negligence, Professional Duty of Care
Civil Procedure Construction Law Costs Indemnity Costs Standard Costs Part 36 Offers Negligence Professional Duty of Care

Case Brief

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Parties

Ms Basia Lejonvarn

Appellant/defendant

Mr Peter Burgess & Mrs Lynn Burgess

Respondents/claimants

Procedural Posture

Appeal (civil) / Appeal From Technology and Construction Court on Costs Order

Legal Issues

  1. 1 Whether the respondents' pursuit of speculative or weak claims justified indemnity costs against them
  2. 2 Whether the respondents' failure to accept and beat the appellant's Part 36 offer justified indemnity costs
  3. 3 Whether the gap between the appellant's approved costs budget and actual costs precluded indemnity costs

Ratio Decidendi

The Court of Appeal held that from one month after its earlier judgment, the respondents' claims were speculative or weak and should not have been pursued. Their continued pursuit was out of the norm and justified an order for indemnity costs from that date. The respondents' failure to accept and beat the appellant's Part 36 offer, when seen against the background of these claims, further supported indemnity costs. The judge erred in principle by not addressing whether the claims had become speculative or weak and by focusing on whether they were hopeless in hindsight.

Court Disposition

Appeal allowed in part

Orders

  • Order for indemnity costs in favour of the appellant from 7 May 2017 onwards
  • Costs to be assessed on the standard basis prior to 7 May 2017