Page 6 - Inside Law Magazine Issue 9 - Winter 2014-15
P. 6

DONT GET
BITTEN!

Obtaining Costs After Discontinuance by the Claimant

Rovkic v Peacock [2014] EWHC 3729 (TC)

This case saw the claimant                        No provision for costs was made in the        the parties but, as is the norm with such
        discontinue after having                  correspondence. Whether or not this omission  agreements, no admission of liability
        obtained two adjudication                 was owing to carelessness on the part of      was made. The court was therefore
decisions against the defendant. The              the defendant - it came back to bite him.     obliged to consider the question of costs.
claimant advanced the offer that:                 The defendant accepted, and paid the          By CPR Part 38.2(1), ‘A claimant has the
“[If the defendant] pays our client the           requested sum to the claimant. In line with   right to discontinue the claim at any time’.
£43,892.37 our client will discontinue            the agreement, the claimant discontinued,     Critically however, this is dependent on the
the court proceedings and will thereafter         and sought an order for costs in his          court granting permission to do so under
negotiate in good faith with a view to achieving  favour. The defendant contended that          Rule 38.2(2)(a). In addition, Rule 38.5 clearly
overall settlement. However, unless and until     he was liable to costs in this instance.      provides that discontinuance takes effect
that sum is paid by Peacock our instructions      The claimant asserted that there was          upon service of the notice of discontinuance.
are to continue with court proceedings            nothing in the agreement with regard to       Questions are now raised as to the effect
and obtain a judgment to enforce the full         costs. The matter was put to the court.       of inter partes agreements in drawing the
amount claimed with interest thereof.”            The judge was satisfied that a binding        line indicating when costs cease to be
                                                  agreement had been created between            ‘awardable’ to a winning party. Do these

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