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Nelson's Yard Management Company & Ors v Eziefula [2013] EWCA Civ 235 - 21/03/13


Appeal against an order for costs where the claimant had discontinued proceedings on the ground that the defendant's failure to respond to pre-action correspondence justified departing from the default rule in CPR 38.6(1).

Held: The example of disapplying CPR 38.6(1) where there is non-compliance with the spirit of the pre-action protocol provided in the White Book (vol. 1, p. 2567) analogous to unreasonable conduct under the costs on discontinuance principles set out in Teasdale v HSBC Bank [2010] EWHC 612 (QB) and Brookes v HSBC Bank [2011] EWCA Civ 354.

Appeal allowed. Athough the Recorder referred to the failure to respond to the pre-action correspondence, he erred in principle in concluding that this would involve a consideration of the merits. Failure to respond was unreasonable conduct justifying that the default rule be disapplied. Defendant ordered to pay claimants' costs up to the date when the defendant's defence was served and no order for costs thereafter.