Excelsior Commercial & Industrial Holdings Ltd v Salisbury Hammer Aspden & Johnson (a firm) [2002] EWCA Civ 879 (12 June 2002)

Excelsior Commercial & Industrial Holdings Ltd v Salisbury Hammer Aspden & Johnson (a firm) [2002] EWCA Civ 879 (12 June 2002)

An order for indemnity costs requires some conduct or circumstance taking the case out of the norm. In this case, the claimant's pursuit of the claim after the Part 36 payment, despite knowing that any additional insurance proceeds would have been a windfall and that the purchase would have proceeded regardless, justified the trial judge's exercise of discretion to award indemnity costs from the date of the payment into court.

Citation
[2002] EWCA Civ 879
Parties
Appellant/claimant: Excelsior Commercial & Industrial Holdings Limited; First Respondent/defendant: Salisbury Hammer Aspden & Johnson (A Firm); Fifth Respondent/defendant: Betesh & Company (A Firm)
Jurisdiction
England and Wales
Judgment Date
12 June 2002
Procedural Posture
Civil Appeal / Appeal From High Court (queen's Bench Division) to Court of Appeal
Outcome
Appeal dismissed
Legal Topics
Indemnity Costs, Standard Costs, Part 36 Offers, Judicial Discretion in Costs, Assessment of Damages
Civil Procedure Costs Indemnity Costs Standard Costs Part 36 Offers Judicial Discretion in Costs Assessment of Damages

Case Brief

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Parties

Excelsior Commercial & Industrial Holdings Limited

Appellant/claimant

Salisbury Hammer Aspden & Johnson (A Firm)

First Respondent/defendant

Betesh & Company (A Firm)

Fifth Respondent/defendant

Procedural Posture

Civil Appeal / Appeal From High Court (queen's Bench Division) to Court of Appeal

Legal Issues

  1. 1 When is it appropriate to make an order for costs on an indemnity basis under the Civil Procedure Rules?
  2. 2 Did the trial judge err in awarding indemnity costs to the defendants after a Part 36 payment was made and not accepted?

Ratio Decidendi

An order for indemnity costs requires some conduct or circumstance taking the case out of the norm. In this case, the claimant's pursuit of the claim after the Part 36 payment, despite knowing that any additional insurance proceeds would have been a windfall and that the purchase would have proceeded regardless, justified the trial judge's exercise of discretion to award indemnity costs from the date of the payment into court.

Court Disposition

Appeal dismissed

Orders

  • Costs in each case of each defendant on the standard basis on the amounts submitted less £750