'What is sauce for the goose is sauce for the gander', but no presumption in favour of indemnity costs for unsuccessfully pursuing fundamental dishonesty - Amy Lanham Coles, Temple Garden Chambers
24/06/24. Thakkar v Mican [2024] EWCA Civ 552.
This case started, and notably ended, its life as a “straightforward” road traffic accident claim. In the interim, the First and Second Respondent (the Defendant driver and his insurance company) contended that the Appellants (former Claimants) had been fundamentally dishonest. They failed in this submission, first failing in their application to amend their Defence to positively plead fundamental dishonesty and then later failing at trial – where the then Claimants were successful.
This left a debate about costs. It was accepted on both sides that the Appellant/Claimants’ costs until the date the Respondents first sought to allege fundamental dishonesty should be assessed on the standard basis. It was also accepted on both sides that the Appellant/Claimants’ costs of the trial should be assessed on the indemnity basis because they had bettered the relevant Part 36 offer.
ISSUES
The only matter in dispute related to the costs for the period from when the Respondents first sought to formally allege fundamental dishonesty until the trial. The Claimant argued that these should also be assessed on the indemnity basis because...
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