Stubbins Marketing Ltd & Ors v Rayner Essex LLP & Anor [2023] EWHC 515 (Ch) (16 March 2023)

Stubbins Marketing Ltd & Ors v Rayner Essex LLP & Anor [2023] EWHC 515 (Ch) (16 March 2023)

The amendment of the claim form to remove serious allegations, even though unserved, should be treated as a discontinuance for costs purposes. Rayner Essex is entitled to its costs of and occasioned by the discontinued claims, including pre-action costs, to be assessed on the indemnity basis due to the speculative and unfounded nature of the original allegations, but assessment should await the conclusion of the proceedings.

Citation
[2023] EWHC 515 (Ch)
Parties
Claimant: Stubbins Marketing Limited; Claimant: Mariano Difrancesco; Claimant: Antonio Difrancesco; Claimant: Antonio Giuseppe Difrancesco; Claimant: Onofria DiCarlo; Claimant: Onofria Bailey; Claimant: Giovanni Difrancesco; Claimant: Michele Difrancesco; First Defendant: Rayner Essex LLP; Second Defendant: Gisby Harrison (A Firm); Third Party: Salvatore Michele Difrancesco
Jurisdiction
England and Wales
Judgment Date
16 March 2023
Procedural Posture
Costs Application in Civil Proceedings / Post Amendment, Application for Costs Following Partial Discontinuance
Outcome
Application granted in part; costs awarded to Rayner Essex on the indemnity basis for discontinued claims, assessment deferred until conclusion of proceedings.
Legal Topics
Costs, Discontinuance, Indemnity Costs, Pre Action Protocol, Amendment of Claim Form, Professional Negligence, Breach of Duty, Fraud Allegations
Civil Procedure Professional Negligence Company Law Costs Discontinuance Indemnity Costs Pre Action Protocol Amendment of Claim Form +2 more

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Parties

Stubbins Marketing Limited

Claimant

Mariano Difrancesco

Claimant

Antonio Difrancesco

Claimant

Antonio Giuseppe Difrancesco

Claimant

Onofria DiCarlo

Claimant

Onofria Bailey

Claimant

Giovanni Difrancesco

Claimant

Michele Difrancesco

Claimant

Rayner Essex LLP

First Defendant

Gisby Harrison (A Firm)

Second Defendant

Salvatore Michele Difrancesco

Third Party

Procedural Posture

Costs Application in Civil Proceedings / Post Amendment, Application for Costs Following Partial Discontinuance

Legal Issues

  1. 1 Whether amendment of an unserved claim form to remove serious allegations constitutes discontinuance for costs purposes under CPR 38
  2. 2 Whether pre-action costs are recoverable in these circumstances
  3. 3 Whether costs should be assessed on the indemnity or standard basis

Ratio Decidendi

The amendment of the claim form to remove serious allegations, even though unserved, should be treated as a discontinuance for costs purposes. Rayner Essex is entitled to its costs of and occasioned by the discontinued claims, including pre-action costs, to be assessed on the indemnity basis due to the speculative and unfounded nature of the original allegations, but assessment should await the conclusion of the proceedings.

Court Disposition

Application granted in part; costs awarded to Rayner Essex on the indemnity basis for discontinued claims, assessment deferred until conclusion of proceedings.

Orders

  • Claimants to pay First Defendant's costs relating to the part of the proceedings discontinued when the claim form was amended to delete various causes of action, such costs to be assessed on the indemnity basis.
  • Assessment of such costs to await the conclusion of the rest of the proceedings.