Alpha Insurance A/S v Roche & Anor [2018] EWHC 1342 (QB) (25 May 2018)

Alpha Insurance A/S v Roche & Anor [2018] EWHC 1342 (QB) (25 May 2018)

The judge at first instance erred in law by applying an exceptionality test not required by CPR 44PD 12.4(c); the correct approach is to exercise an unfettered discretion considering all relevant circumstances. Given the late discontinuance without explanation and the defendant's incurred costs, it is reasonable to direct that the issue of fundamental dishonesty be determined.

Citation
[2018] EWHC 1342
Parties
Appellant (defendant): Alpha Insurance A/S; Respondent (claimant): Lorraine Roche; Respondent (claimant): Brendan Roche
Jurisdiction
England and Wales
Judgment Date
25 May 2018
Procedural Posture
Appeal / Appeal Against Case Management Decision Post Discontinuance
Outcome
Appeal allowed
Legal Topics
Qualified One Way Costs Shifting (qocs), Fundamental Dishonesty, Discontinuance of Claims, Case Management Discretion
Civil Procedure Insurance Law Qualified One Way Costs Shifting (qocs) Fundamental Dishonesty Discontinuance of Claims Case Management Discretion

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Parties

Alpha Insurance A/S

Appellant (defendant)

Lorraine Roche

Respondent (claimant)

Brendan Roche

Respondent (claimant)

Procedural Posture

Appeal / Appeal Against Case Management Decision Post Discontinuance

Legal Issues

  1. 1 Whether the court should direct determination of fundamental dishonesty after notice of discontinuance under CPR 44PD 12.4(c)
  2. 2 Whether the judge at first instance applied the correct legal test for exercising discretion under CPR 44PD 12.4(c)

Ratio Decidendi

The judge at first instance erred in law by applying an exceptionality test not required by CPR 44PD 12.4(c); the correct approach is to exercise an unfettered discretion considering all relevant circumstances. Given the late discontinuance without explanation and the defendant's incurred costs, it is reasonable to direct that the issue of fundamental dishonesty be determined.

Court Disposition

Appeal allowed

Orders

  • Issues relating to fundamental dishonesty to be determined at trial
  • Parties invited to agree an appropriate order