Exceptions to the default rule on costs in discontinued cases are rare but do exist, explains Jack Ridgway
- Notes that it is a high bar for the court to disapply the default rule in CPR 38.6(1) that a claimant who discontinues is liable for the defendant’s costs.
- Covers the unusual case of Benjamin v Benjamin & Anor [2024], in which the court found the claimant had acted reasonably while the lack of capacity was unknown.
When should a court disapply the default rule in CPR 38.6(1) that a claimant who discontinues is liable for the defendant’s costs? That was the question before Chancery Master McQuail in Benjamin v Benjamin & Anor [2024] EWHC 215 (Ch).
It is a high bar. The principles applicable to the exercise of the court’s discretion under CPR 38.6(1) were summarised by the Court of Appeal in Brookes v HSBC Bank [2011] EWCA Civ 354 [2011] All ER (D) 341 (Mar), as adopted and approved by the Court of Appeal in Nelson’s Yard Management Co v Eziefula [2013] EWCA Civ 235,
