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England and Wales decisions
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The High Court declined to impose a further contempt penalty, ordered an inquiry into cross-undertaking damages, and made mixed costs orders after discontinuance.
Wei & Ors v Long & Ors [2025] EWHC 1799 (KB) (14 July 2025)
On discontinuance, the court held the claimants must pay D3’s costs under CPR 38.6. Summary assessment was refused, and payments on account were ordered.
On discontinuance, the High Court held the claimants must pay D3’s costs. The court found no good reason to depart from CPR 38.6 and ordered payments on account.
BB & Ors v Al Khayyat & Ors [2025] EWHC 379 (KB) (19 February 2025)
The High Court refused an application to disapply CPR 38.6 costs consequences after discontinuance, holding the claimants had not proved the required basis.
After the claimants discontinued an IP claim, the High Court held that CPR 38.6 applied and ordered standard-basis costs; indemnity costs were refused.
Elphicke v Times Media Ltd [2024] EWHC 2595 (KB) (14 October 2024)
On discontinuance, the court reduced the defendant’s recoverable costs by 20% for admitted breaches of the collateral use rule and failure to preserve evidence.
On discontinuance, the court reduced the defendant’s costs by 20% for admitted collateral use of witness statements and failure to preserve evidence, and ordered ADR before assessment.
The default rule in CPR 38.6(1) is disapplied because the defendants unreasonably failed to provide trust information pre-action, leading the claimant to issue proceedings. Incapacity was not established for the relevant period, so cannot shield the defendants from costs liability. The claimant achieved the substantive aim of the claim, justifying indemnity costs up to 23 September 2022 and standard costs thereafter.
Source excerpt
Benjamin v Benjamin & Anor [2024] EWHC 215 (Ch) (09 February 2024)
Costs decision on discontinuance in a trust dispute. The court disapplied the default rule because the trustees had unreasonably failed to provide trust information pre-action.
HRH Princess Deema Bint Sultan Bin Abdulaziz Al Saud v Gibbs [2023] EWHC 3111 (Comm) (05 December 2023)
The High Court held that a debarring order barred a security for costs application, but not an application for costs already ordered in the defendant’s favour.
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