C - Costs on the indemnity basis
28/6/24
HOUSSEIN v LONDON CREDIT LIMITED [2024] EWCA Civ 721
The court reviewed principles applicable to penalties and default interest. The trial judge had not applied to correct test. He had not asked if the default rate (an additional 3% per month) was a secondary obligation, had not separately considered factors relevant to whether the lender had a legitimate interest in charging the default rate, wrongly considered the lender’s subjective intention, and had not asked whether the default rate was extortionate, extravagant and/or unconscionable in the light of any legitimate interest in charging it. Whether the rate was penal was remitted for reconsideration. If the default rate was penal, on its proper construction the credit agreement made no provision for any other rate so the lender would be left with a claim to statutory/equitable interest. The judge had also been wrong to make an issue based costs order without having considered which party was the overall winner and whether that party’s costs should be discounted. The judge had been entitled to refuse to order costs in the indemnity basis.
20/3/24
NAVIGATOR EQUITIES LTD v DERIPASKA [2024] EWCA Civ 268
Contains a useful summary of the law of contempt [47]. On the facts, the judge had been entitled to conclude that a case of contempt had been proved to the criminal standard. The use of inappropriate of flamboyant language in an affidavit did not justify an award of costs on the indemnity basis [83].
11/6/20
BRAKE v GUY [2020] EWHC 1484 (Ch)
Evidence in a witness statement on an interim application cannot be disbelieved unless it is simply incredible [17]. Considers principles on which the court will order security for costs against an individual claimant under CPR 25.13(2)(g) because the claimant has taken steps in relation to his assets that would make it difficult to enforce an order for costs against him [36]. During the hearing the defendant conceded the test was not satisfied, but the court would not have ordered security in any event. The defendant was therefore liable to pay the claimant’s costs but there was nothing sufficiently out of the norm to justify assessment on the indemnity basis [75].
1/6/20
DE SENA v NOTARO [2020] EWHC 1366 (Ch)
Considers principles regarding the award of costs on the indemnity basis [9], payment on account of costs [50], time for payment [60], and interest on costs [63].