James Malam appears in indemnity costs Court of Appeal case

December 18, 2017

James Malam of Exchange Chambers appeared in the Court of Appeal in the case of Whaleys (Bradford) Ltd V (1) Garry Bennett (2) Jonathan Cubitt [2017] EWCA Civ 2143, in which the Court gave further guidance on the approach to be adopted when considering whether to make an indemnity costs order.

When considering whether to award indemnity costs the court should ask itself whether the conduct of the paying party was ‘out of the norm’ and should avoid asking whether the conduct was ‘exceptional’, though doing so did not constitute an error per se.

The proper test for an indemnity costs award “was not intended to reflect whether what occurred was something that happened often so that in one sense it might be seen as ‘normal’ but was intended to reflect something outside the ordinary and reasonable conduct of proceedings”.

Consequently, the first instance judge had erred in declining to award indemnity costs in enforcement proceedings on the basis that “many debtors try to avoid paying that which is due”.