The Defendant's conduct following the Claimant's discontinuance

Hewson V Wells and Ors [2020] EWHC 2722 (ch)


The underlying claim arose following the death of Mr Wells who was a cohabitee of the Claimant.  Mr Wells died intestate and the Claimant issued proceedings for an interest in the property under the Inheritance (Provision for Family and Dependants) Act 1975.

In the wake of several developments, the Claimant ultimately filed a notice of discontinuance following the issue of proceedings.  As per CPR 38.6, ‘Unless the court orders otherwise, a claimant who discontinues is liable for the costs which a defendant against whom the claimant discontinues incurred on or before the date on which notice of discontinuance was served on the defendant.’

However, the Claimant also made an application for an Order for the parties to bear their own costs and thus sought to disapply CPR 38.6.  The Claimant’s primary argument being that the conduct of the Defendant in not abiding by the Pre-Action Protocol was such that it caused the Claimant hinderance in assessing and pursuing the allegations.  In support, the Claimant pointed to the Defendant’s approach to disclosure.  Namely, the obstacles presented in the provision of the original Deed which dealt with ownership of the property.

By contrast, it was the Defendant’s argument that this lapse in the provision of key disclosure was not material to the final outcome of the claim.  In support, the Defendant argued that the Claimant would have been aware of the contents of the Deed and in any event that the Deed was served seven months prior to the discontinuance of the claim. 

Of note and of relevance in the Court’s determination as to the appropriate order for costs was CPR 44.2, which allows the Court wide discretion in accounting for all relevant circumstances.  This includes both of the parties’ conduct in addressing matters.

The Court considered the burden of proof placed on the Claimant in seeking to depart from CPR 38.6, and the requirement to demonstrate some form of significant development capable of making the presumption unjust, pointing out that often a Claimant will seek to highlight a sufficiently significant change in circumstances that did not arise as a direct result of the Claimant’s actions.  However, a lack of change in circumstances does not preclude this presumption.  Unreasonable conduct on the Part of the Defendant can provide a sufficient circumstance in departing from this rule (Brookes v HSBC Bank Plc [2011] EWCA Civ 354).

In applying these principles, it was held that the unreasonable behaviour on the part of the Defendant in not engaging with the Claimant in compliance with the Pre-Action Protocol was sufficient to disapply the usual rule.  The Defendant’s failure to disclose the Deed was a sufficient failure in conduct, which merited a finding for no order as to costs.

In conclusion, this judgment is a helpful reminder of the burdens placed on both parties in proactively addressing and advancing matters as well as a cautionary tale of the consequences of a failure to do so and the costs implications that can arise as a result.


By Costs Lawyer James Sherwood

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