When a claimant discontinues their claim, whether that be because of insufficient evidence or limited recovery prospects, or to avoid further costs being incurred, the default costs order is that the claimant must bear the legal costs which a defendant has incurred up to the date on which the claim is discontinued.

That is, unless the court orders otherwise, as was the case in a recent High Court decision in which the court ordered a reduction of the claimant’s costs liability based on the defendant’s alleged misconduct after the claim had been discontinued.

In Elphicke v Times Media Ltd [2024] EWHC 2595 (KB) former MP, Charles Elphicke, had brought a claim against the Sunday Times for defamation following articles published about him in 2018, however, he ultimately discontinued that claim in 2022.

Following the discontinuance, the court had to decide the level of the defendant’s costs payable by the claimant. When it came to arguments on the question of costs of multiple applications made by the defendant, the claimant referred the court to the defendant’s conduct post-discontinuance, in particular the defendant’s use of disclosed evidence produced in the course of the proceedings as material for articles and social media content, and its alleged failure to preserve relevant evidence when on notice to do so.

The court found nothing in the wording of the relevant costs rules under CPR 38.6 and CPR 44, nor any case law to prevent it from choosing to depart from the standard rule. As a result, the court concluded that such conduct was sufficiently serious to justify a reduction in the claimant’s costs liability to the defendant and the court ordered a 20% reduction in the costs payable by the claimant.

In addition, the court also ordered the parties to engage in mandatory alternative dispute resolution (‘ADR’) prior to the formal assessment of costs claimed by the defendant. The court expressed that such ADR was expected to be no less than the participation in mediation and any failure or unwillingness to take part in such ADR would need to be justified to a costs judge. It was also suggested that such an order should become the norm where costs had not yet been agreed.

The case is a reminder that the court can depart from the default costs position, and can consider the defendant’s conduct post-discontinuance, in deciding the proportion of costs payable by the claimant.