Description
A discontinuing claimant failed to rebut the presumption under CPR, r.38.6 that it should be liable for the defendant's costs.
The Applicant (A) brought proceedings against the Respondent (R) for defamation in relation to a letter which questioned one of A's veterinary products. Following exchange of expert evidence and a meeting of the experts, A required the experts to carry out further testing, as a result of which R's expert produced a report that undermined A's case. A served notice of discontinuance on the afternoon of the day before trial. A argued it should not have to pay the costs consequent on the late service of the supplemental report.
The usual rule was that a claimant who discontinued was liable for the defendant's costs incurred before that date (CPR, r.38.6).
Teasdale v HSBC [2011] EWCA Civ 354; [2012] 3 Costs L.O. 285 indicated that the burden was on the claimant to show a good reason for departing from that position and to succeed he would usually need to show a change of circumstances to which he had not himself contributed and which had been brought about by some form of unreasonable conduct by the defendant.
The Court held that A had not shown any good reason to displace the presumption. The change of circumstances had been brought about by A challenging R's testing and there had been no unreasonable conduct by R.
