In the matter of Spencely v Allianz Insurance, heard on Friday 22nd of September before District Judge Davies, sitting in Edmonton County Court. Alex Lawson, instructed by Joseph Gray of Carpenters, successfully resisted an application for the Defendant for wasted costs.
This was a matter which arose from a low velocity personal injury trial, where the Claimant had discontinued at the door of the court previously. The Defendant then sought wasted costs against the solicitors directly.
The Court was expressly referred to the relevant passages within the White Book, and reminded that Judges should make full allowance where privilege has not been waived by a party for the difficulty this places that party in in fully defending such an application. It was pointed out there were many explanations other than negligence, and that a court simply could not know without the waiving of privilege, why a person may discontinue on the day of trial.
The court reasoned that: “The only real circumstances where a case could result in wasted costs, is that where the Defendant is able to satisfy the Court that whatever advice was or was not given, the conduct of sols was clearly negligent or that the inference drawn from circumstances that proper advice was not given and that was so clear as to be only justifiable conclusion. I cannot reach either of those conclusions, true it is that the Claimant discontinued at the door of the Court, and this may raise questions, but those are sort of questions on applications to set aside notice of discontinuance, and law is clear that as policy, we ought not to look behind notice of discontinuance, it is good policy.”
Costs were awarded in favour of the Claimant.
This case illustrates a number of the pitfalls which exist for those seeking to avoid the case of Excalibur Ventures LLC & Ors -v- Psari Holdings Limited & Ors [2016] EWCA Civ 144.
A full case update and practice note on discontinuance and wasted costs generally in civil proceedings is to follow from Mr Lawson and Mr Adamou of Chambers.
To instruct Mr Lawson, please feel free to contact his clerks via Clerks@33br.co.uk.