Walker v Walker [2005] EWCA Civ 247 (27 January 2005)

Walker v Walker [2005] EWCA Civ 247 (27 January 2005)

There was no material change in the relevant circumstances between the commencement of proceedings and the application to discontinue; the liquidator could and should have realised the commercial futility of the claim at the outset. Therefore, there was no good reason to depart from the normal rule that the claimant pays the defendant's costs on discontinuance.

Citation
[2005] EWCA Civ 247
Parties
Claimant/respondent: Ian Edward Walker; First Respondent/appellant: John Graham Walker
Jurisdiction
England and Wales
Judgment Date
27 January 2005
Procedural Posture
Civil Appeal / Appeal From High Court (chancery Division) to Court of Appeal
Outcome
Appeal allowed
Legal Topics
Discontinuance of Proceedings, Costs Orders, Directors' Duties, Misfeasance, Freezing Injunctions
Insolvency Law Civil Procedure Discontinuance of Proceedings Costs Orders Directors' Duties Misfeasance Freezing Injunctions

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 9 Party arguments 2 Amounts and remedies 7
Sign in to unlock

Parties

Ian Edward Walker

Claimant/respondent

John Graham Walker

First Respondent/appellant

Procedural Posture

Civil Appeal / Appeal From High Court (chancery Division) to Court of Appeal

Legal Issues

  1. 1 Whether the normal rule under CPR 38.6 (claimant pays defendant's costs on discontinuance) should be departed from in this case
  2. 2 Whether there was a material change in circumstances justifying no order as to costs on discontinuance

Ratio Decidendi

There was no material change in the relevant circumstances between the commencement of proceedings and the application to discontinue; the liquidator could and should have realised the commercial futility of the claim at the outset. Therefore, there was no good reason to depart from the normal rule that the claimant pays the defendant's costs on discontinuance.

Court Disposition

Appeal allowed

Orders

  • Paragraph 3 of the order of 24 June 2004 (no order as to costs) set aside
  • Claimant (liquidator) to pay the defendant's (Mr Walker's) costs down to the date of notice of discontinuance