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

Nelson's Yard Management Company and Others v Eziefula, Court of Appeal, 21 March 2013

6 September 2013
The issues

Costs – discontinuance – Pre-Action Protocol

The facts

Mr Eziefula owned property beside property owned by the claimants. He began excavating close to the rear wall of their premises. The claimant’s four pre-action letters claiming that he’d failed to serve a notice under the Party Wall Act 1996 and asking for access for a surveyor to inspect the foundations of their property. There was no response. Proceedings were issued in January 2008 seeking an injunction. Mr Eziefula served a defence disputing the claims and arguing that the Party Wall Act did not apply. In August 2008 the defendant served a Party Wall Notice and agreed with the claimants a Party Wall award. The defendant said that the notice and the award related to future works and not the works that were the subject of the dispute. In March 2012 the claimant served a Notice of Discontinuance. The claimants, notwithstanding their notice applied for their costs. The judge rejected the application and ordered them to pay the defendant?s costs. The claimant?s appealed against the order.

The decision

The relevant principles were contained in the judgment of Lord Justice Moore – Bick in subnom Brookes v HSBC bank. They were:

  1. where a claimant discontinued there was the assumption by reason of CPR 38.6 that the defendant should recover costs and the burden was on the claimant to show a good reason for departing from that position
  2. the fact that the claimant might have succeeded in trial was not a sufficient reason in itself
  3. if it was plain that the claim would have failed that was an additional reason in favour of applying the presumption
  4. the fact that the claimant’s decision to discontinue may have been motivated by practical, pragmatic or financial reasons, as opposed to a lack of confidence in the merits of the case would not suffice to displace the presumption
  5. if the claimant succeeded in displacing the presumption he would usually need to show a change of circumstances to which he had not contributed
  6. no change of circumstance is likely to suffice unless it had been brought about by some form of unreasonable conduct on the part of the defendant

In this case the debate concerned the 6th principle. CPR 44.3 (5) provided that conduct included conduct before as well as during the proceedings.

The burden on the claimant was a significant one. Because the claimant had got most of what he could reasonably hope to achieve from the proceedings did not justify the judge permitting a departure from the normal rule as to costs. Where there was no trial it was not the court’s job to consider whether the claim would have succeeded if it had continued but to consider whether the defendant had been unreasonable.

The defendant had failed to deal with pre-action correspondence. The defendant had shown no willingness to set out his position, to narrow the issues or to discuss mediation or a settlement. The recorder, although he had referred to the failure to respond to pre-action correspondence, had erred in principle in concluding that consideration of the consequences of this would involve him in a consideration of the merits of the claim. He had failed to take into account, therefore, a relevant consideration in the exercise of his discretion and he was outside of the generous margin of appreciation that appellant courts gave judges in the exercise of that discretion. His order had to be set aside.

The Court of Appeal would exercise its own discretion. The failure of the defendant to respond to in any way to the four pre-action letters was unreasonable conduct which justified disapplying the default rule. In the circumstances the order was that the defendant paid the claimant’s costs of the action to 3 May 2008 when the defence was served and that there be no order for costs thereafter.

Report prepared by Mark Fowles, Insurance Claims and Public Risk Department, Exeter.

focus on...

Legal updates

Non-payment of insurance premiums during the Coronavirus pandemic

The forced closure of many businesses as a result of the Coronavirus pandemic has had a huge impact on the nation’s Gross Domestic Product (GDP). Recent reports from the Office for National Statistics state that the economy was 25% smaller in April than it was in February this year.


Legal updates

Noise-induced hearing loss claims – documentation and the expert engineer

Guest writer, Finch Consulting Senior Consultant Teli Chinelis applies his expertise in preparing engineering reports in relation to noise-induced hearing loss (NIHL) claims to explain information that is required from the claimant and information that is required and is advisable to be retained by employers, in order to ensure that claims can be fairly represented.


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).


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.


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