QB-2021-004022 - [2025] EWHC 1701 (KB)

Ms Grossman suggests that the answer to this question is ‘yes’ – at least as to half the total, on the basis that the Claimant was successful – presumably against the Second and well as the First Defendant – in relation to the equitable set off defence and his alleged refusal to mediate. As to the first point, the set off point was and could only ever be a claim by the First Defendant and the Claimant did not owe any contractual or other relevant duties to the Second Defendant. I also do not accept that the mediation question can give rise to an obligation on the part of the Second Defendant to pay costs in respect of an action which did not succeed against him but only succeeded against the First Defendant. For those reasons, the liability to pay the costs of the action in respect of which the Claimant has succeeded, rest with the First Defendant alone.

Ms Grossman also suggests that the Third Defendant should also be liable in respect of some of the costs of the equitable set off. I disagree for the same reasons as set out above in relation to the First Defendant.