Unreasonable defendant must face costs consequences

The High Court has sent another warning message to litigants that they should expect to face costs penalties for unreasonable conduct.

In Barkhuysen v Hamilton, published just before Christmas, Mr Justice Warby said the claimant was entitled to more than budgeted costs due to how the case was handled.

The claimant had succeeded on a claim for £32,080 damages for false imprisonment, slander and harassment, rejecting a claim for malicious prosecution and three alleged slanders, including allegations of bestiality. 

Warby ordered that the defendant should pay 90% of the claimant’s costs – coming to £150,000 – subject to the indemnity basis after finding reasons to depart from the budget.

The judge found the claimant had ‘beaten’ at least one Part 36 offer to settle the claim and ruled that the court did not reduce the costs recoverable even if a claimant failed in some minor respects.

Warby said the case merited indemnity costs due to the defendant making a false allegation that the claimant had had sex with one of her pigs, and her trying to influence the course of justice by threatening a witness with consequences if he gave evidence against her.

Warby said the defendant told a ‘series of serious lies’ in the course of the litigation, including allegations that he threatened her personal safety and drove at her.

The judge said he also had experience of the disproportionate manner in which the defendant conducted herself during litigation, firstly without counsel and then in the manner she instructed her counsel to proceed.

Ruling her conduct was ‘unreasonable to a high degree’, he applied a 10% interest rate to the compensation.

Warby added: ‘If the defendant had dealt with this case in a reasonable and proportionate manner the default position at this stage would be that nothing more than the budgeted costs can be recovered.

‘But if a litigant chooses to litigate mendaciously and, despite the court’s every effort, in a disproportionate way, and if she thereby causes considerable additional costs, the litigant is in a poor position to cavil when confronted with the costs consequences.’

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Unreasonable defendant must face costs consequences