KB-2021-000741 - [2025] EWHC 2257 (KB)

The Represented Claimants draw attention to CPR 44.2 which says that the Court will have regard to the conduct of the parties.

“(4)

In deciding what order (if any) to make about costs, the court will have regard to all the circumstances, including –

the conduct of all the parties;

(b)

whether a party has succeeded on part of its case, even if that party has not been wholly successful; and

(c)

any admissible offer to settle made by a party which is drawn to the court’s attention, and which is not an offer to which costs consequences under Part 36 apply.

….

“(5)

The conduct of the parties includes –

(a)

conduct before, as well as during, the proceedings and in particular the extent to which the parties followed the Practice Direction – Pre-Action Conduct or any relevant pre-action protocol;

(b)

whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;

(c)

the manner in which a party has pursued or defended its case or a particular allegation or issue;

…

It is not necessary to rehearse the law relating to indemnity costs. It is sufficient to cite three paragraphs of the Represented Claimants’ submissions at [17-19] which are as follows:

17.

As Coulson J said in Noorani v Calver [2009] EWHC 592:

“… the court must decide whether there is something in the conduct of the action or the circumstances of the case in question which takes it out of the norm in a way which justifies an order for indemnity costs.

18.

‘Out of the norm’ means “outside the ordinary and reasonable conduct of proceedings” (Whaleys (Bradford) Ltd v Bennett and another [2017] EWCA Civ 2143).

19.

As Coulson J held in Noorani, if despite strong evidence to the contrary a losing party refuses to concede issues, that is something which may:

“…on its own (justify) an order … for indemnity costs.”

As regards offers to settle, there was no Part 36 offer. Prior to the commencement of the proceedings, there was a Calderbank offer on 13 October 2020 under which the first nine Claimants offered to pay JBL the sum of £105,000 in full and final settlement of all claims (“the first offer”). Two days later that was increased to a sum of £150,000 (“the second offer”). These offers were not accepted. On 2 March 2021, by which time there were twenty Claimants, a Calderbank offer of no order (sometimes referred to as “drop hands”) was made by the Claimants to JBL (“the third offer”). The third offer was not accepted.

At a late stage of the proceedings but prior to the trial, on 26 February 2025, an offer was made of no order being made other than a payment by JBL to the Claimants of £195,000 towards their costs (“the fourth offer”).

In order for the refusal of an offer - to attract an order for assessment on the indemnity basis, the paying parties’ refusal to accept the offer would generally have to constitute unreasonable conduct of a high degree: see the cases referred to in the first paragraph of the commentary in the White Book (2025) at para. 44.3.12. There was nothing out of the norm about the refusal to accept the first two offers, bearing in mind that JBL would have been concerned about the position as regards other franchisees who had not yet come forward.

As regards the third offer, this was made before the claim had been served. The particulars of claim were not served until about 3 weeks after the offer had lapsed. Further, the offer was predicated on the basis of a case that was not the same as the way in which the case was thereafter pleaded. The fourth offer was made shortly before the start of the trial at a time when the precise costs incurred to that stage were not known.

In my judgment, the refusal to accept those offers or any of them did not constitute unreasonable conduct of a high degree nor did the fact that the offers were not accepted take this case outside the ordinary and reasonable conduct of proceedings, nor did it take the case out of the norm in a way which justifies an order for indemnity costs.