UT (Tax & Chancery) UT/2022/000099 - [2024] UKUT 00184 (TCC)

“What is required is an evaluation of the nature and degree of the
misconduct, its relevance to and effect upon the issues arising in the trial, and its tendency to create an unwarranted increase in the costs of the action to either or both of the parties.”

“Drawing these strands together, the discretion under CPR 44.2(1) is unfettered. The rule requires the Court to have regard to “all the circumstances”, including those listed, and does not exclude from consideration circumstances to which costs cannot be discretely attributed... Even when what is being considered is conduct, rather than the loss of one or more issues, it will generally not be just to deprive a successful party of part of its costs because of conduct which has had no adverse impact on the incidence of costs. Put another way, if what is complained about has had no impact on costs, it will require cogent reasons to justify depriving a successful party of part of its costs on the basis of the complaint.”