0370 270 6000

already registered?

Please sign in with your existing account details.

need to register?

Register to access exclusive content, sign up to receive our updates and personalise your experience on brownejacobson.com.

Privacy statement - Terms and conditions

Excelsior Commercial and Industrial Holdings Ltd v Salisbury Hamer Aspden and Johnson, Court of Appeal, 12 June 2002

19 June 2002
The issues

Costs – conduct – indemnity basis – Part 36.

The facts

The Claimant succeeded at Trial against the Second Defendant, but failed against the First Defendant. Both Defendants together had made a Part 36 payment of £100,000.00 one day before the Trial. The Claimant was awarded only nominal damages in fact against the Second Defendant. The Trial Judge ordered that the Claimant pay both Defendants costs up until one day after the payment in (8th June – the day on which the Trial started) on a standard basis and on an indemnity basis thereafter. The Claimant appealed, arguing that the costs Order should have been made in its favour against the Second Defendant, against whom it had succeeded.

The decision

1. The Judge had heard arguments as to costs and had had the benefit of knowing all the factors in the case. The Trial Judge was in a better position than the Court of Appeal to determine where costs should lie.

2. There were an infinite variety of situations that might occur, which might justify different types of costs orders. It was not possible therefore to give guidance to Judges as to when it was appropriate to order indemnity costs. Such matters were best left to the Judge’s discretion following the rules provided in the Civil Procedure Rules. The Court noted that a Judge had extensive discretion in Part 44. Generally, it would only be appropriate however for indemnity costs to be award where the facts of the case or conduct of the parties took the situation away from the norm.

focus on...

Legal updates

Contingent loss in negligence claims

Contingent loss is relevant to limitation; specifically, the date at which a claimant’s cause of action accrues for the purposes of a claim in the tort of negligence (as many claims against professional advisers are framed).

View

Legal updates

Legal and regulatory monthly update - September 2019

The latest update covering delegated authority, insurance product development, the senior insurance managers regime, data protection, operational control frameworks, Lloyds market, and horizon scanning.

View

Legal updates

Kuoni referred to the CJEU by Supreme Court for clarification - possible impact on breach of contract, vicarious liability and assumption of responsibility claims for sexual abuse and assault

We were hoping to be able to give you some interesting insights following the judgment of X v Kuoni Travel Ltd but that will have to wait for another day.

View

Legal updates

The disappearance of LIBOR

Companies should undertake a comprehensive review and audit to identify those products and legacy contracts that are LIBOR-linked and carry out an in-depth risk assessment of discontinuation. Where possible, companies should look at appointing an individual to oversee the programme.

View

The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

mailing list sign up



Select which mailings you would like to receive from us.

Sign up