King's / Queen's Bench Division of the High Court

KB-2023-004010 - [2025] EWHC 2689 (KB)

Fecha: 17-Oct-2025

XV Should the orders made by Ellenbogen J and Morris J stand despite the abandonment of the action?

XV Should the orders made by Ellenbogen J and Morris J stand despite the abandonment of the action?

136.

This is not a case where there has been an express discontinuance in England and Wales. Nevertheless, for this purpose, it should be treated as if there has been a discontinuance in the sense that upon the dismissal of the WFO, there is nothing more to try. If there had been a discontinuance, I should have refused to set aside or to treat as set aside the orders as to costs made by Ellenbogen J and by Morris J for the following reasons, namely:

(1)

the Court is not bound by the decision of Pill LJ in Safeway Stores Ltd v Twigger (as to which Longmore and Pill LJ expressed no view) which was strictly obiter;

(2)

I accept the reasoning of Andrew Smith J in Dar El Arkan v Al Refai above quoted, namely that interim orders do not fall away because of orders made at the end of the action for all the reasons which he gave. This would undermine the whole purpose of interim orders. The language of CPR 38 would have been expected to be much clearer to show that interim orders already made should be undone.

137.

If I were wrong about this, then even assuming that there had been an order for discontinuance, I should have ordered that the orders of Ellenbogen J and by Morris J should still stand. They reflected what they considered to be unreasonable behaviour having put forward inadequate reasons for adjournments in circumstances which appeared to be tactical to postpone the committal hearing. The fact that the overall proceedings were not justified or that the Contempt Application should not have been pursued does not explain or justify specifically the applications for adjournments. In my judgment, the costs orders were the result of the unreasonable behaviour of Mr Smith and CSM. There is no reason to set aside the orders made.