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Forstater & Anor v Python (Monty) Pictures Ltd & Anor [2013] EWHC 3759 (Ch) - 29/11/13


Judgment on costs in a multiple party and causes action concerning royalties arising from the play 'Spamalot'.

Held, inter alia: Even in a case of modest factual or legal complexity, a broad brush approach is appropriate to a determination of costs, which must be within proportionate and reasonable limits (F & C Alternative Investments (Holdings) Limited v Barthelemy (Costs) [2011] EWHC 2807 (Ch) affirmed). When exercising its discretion to make an order for recoverable costs, the court must take care not to make provision for matters properly considered by the costs judge in the course of assessment.

Departure from the presumption that a claimant who discontinues is liable for costs is justified where discontinuance is brought about by unreasonable conduct. Practical or pragmatic reasons are, of themselves, insufficient. However, abandonment of unsustainable claims should not be undermined by awarding indemnity costs, save where conduct is far outside the norm.

Relief from sanctions for non-disclosure of information concerning funding arrangements depends on the circumstances of the case, having regard to both the need for litigation to be conducted at proportionate cost and enforcement of compliance with the rules. Depending on the circumstances of the case, failure to comply with a rule of general application, which has no discernible impact on the conduct of the action and is complied with in substance, albeit not technically, may justify reflief.

In the present case, costs orders were made following the broad brush approach. Although the effect was to exempt an unsuccessful claimant from some personal liability, no real injustice was caused. Relief from sanctions granted on the basis that the conveying of the requisite information in a letter instead of on form N251 had no discernible impact on the conduct of the action. Indemnity costs justified where a claim for a minimal sum was pursued to trial for the sake of guaranteeing recovery of costs in the face of an offer to let a costs judge adjudicate on the issue.
Judgment not revised after Mitchell [2013] EWCA Civ 1537 on the ground that it 'proceeds upon correct principles' (at [63]).