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Gwembe Valley Development Co Limited v Coshy

12 June 2000
The issues

The Extent To Which Courts Under The Civil Procedure Rules Are Able To Make Costs Orders Which Does Not Follow The Event.

The facts

The Defendant made an application to dismiss the Claimant’s Application for an injunction. The application to dismiss was itself dismissed. An issue as to costs arose.

The decision

The Defendant was ordered to pay 70% of the Claimant’s costs. Under the Civil Procedure Rules the Court has a discretion to make an Order for costs which did not follow the event. The ban is on which it will be exercised is which are substantially the same as in pre Civil Procedure Rules cases. See Elgindata (No2) at 1 All England 1993 at 232. That case had been sighted approvingly by Lord Woolf in a subsequent decision decided under the new rules AEI Rediffusion Music Ltd v Phonographic Performance Ltd. In that case Lord Woolf had chosen not to qualify the principles in Elgindata. The Civil Procedure Rules were merely more specific in relation to the factors which had to be considered when deciding whether to make such a costs order. However, in general successful parties should only pay costs losing parties if the points taken by that party or the manner in which it was taken was unreasonable.

NB. Re Elgindata Limited No 2 decided that principles in which costs were to be awarded were: –

1. Costs were in the discretion of the Court

2. That costs should follow the event except when it appeared to the Court that in the circumstances of the case some other order should be made.

3. That the general rule did not cease to apply simply because the successful party raised issues or made allegations that failed, but that he could be deprived of his costs in whole or in part where he had caused a significant increase in the length of the proceedings.

4. That where the successful party raised issues or made allegations improperly or unreasonably the Court could not only deprive him of his costs but also order him to pay the whole or part of the unsuccessful parties costs.

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