The case of Swift v Brake & Ors [2020] EWHC 2416 (Ch) elbowed its way into the Bailii listings this month with some interesting comments on indemnity costs.

It was interesting to note the Court dishing out criticism in respect of “an inefficient resolution of this part of the litigation.“.

Without going into the litigation itself I am just going to flag up the question of costs.

The second and third respondents submitted that certain costs ought to be paid on the indemnity basis by Mr Swift, the Applicant, in respect of a strike out application.

The applicant was ordered to pay a portion of costs but then came consideration of the indemnity point.

The Court had this to record:

“The first and second respondents emphasise the conduct of the applicant in relation to the Cottage Application. In particular, he did not send any pre-action correspondence to the first and second respondents, did not comply with some of the directions made by the court, did not discontinue the application once he was removed from office and had no further interest in the claim, and did not respond to the strike out application, neither informing the court that he did not intend to take part to resist it, nor consenting to that application, so that a hearing was necessary. Ultimately, the Cottage Application was struck out effectively for want of prosecution (and, as I made clear in my ruling, not on the merits). The provisions of CPR rule 44.2 make clear that in considering what order to make about costs the court will have regard to all the circumstances of the case, including the conduct of the parties.“

“The applicant’s solicitors have already written to the court to apologise for failing to make clear that he was not intending to appear or take part in the hearing of the strike out application. His view was that it was for his successors to deal with the Cottage Application and the application to strike it out. I accept that the applicant intended no discourtesy to the court, but his actions nevertheless resulted in an inefficient resolution of this part of the litigation.”

“In the present case, the applicant submits that there was nothing to show that this was a “speculative, weak, opportunistic or thin claim”, and that therefore an order for costs on the indemnity basis should not be made. The strike-out was not on the merits. The allegations made againt the applicant have not been the subject of adjudication. But, as the Court of Appeal in both Excelsior and in Burgess made clear, it is not just the strength or weakness of the claim, or its other characteristics, which may lead to such an order being made. It is also a question of the conduct of the proceedings by the relevant party. The first and second respondents correctly point out that the applicant agreed to submit to an order for indemnity costs in consenting to an order for his removal from his trusteeship. But I do not think I can infer anything relevant from that in the context of the present question, which arises in different proceedings. I have no explanation as to why the applicant submitted to an order for indemnity costs in that context.“

“Looking at the matter in the round, although I regard the applicant’s conduct the proceedings as far from ideal, and indeed deserving of some criticism, I do not think that it goes so far as to justify an order for costs on the indemnity basis. It is simply sloppy conduct, which in these days is sadly more and more common. I do not say that sloppy conduct on its own can never justify an order for indemnity costs. But it does have to be such as to push the case out of the norm. \So I will order costs to be paid on the standard basis, to be subject to detailed assessment if not agreed.“