EWHC 2016 (TCC)
The dispute here related to the design and construction of a car park in North Cheam. Two of the Defendants successfully brought applications to strike out the claims against them. They then applied for their costs on an indemnity basis because , they said, Sainsbury’s had failed to follow the pre-action protocol process.
Mr Justice Stuart-Smith allowed the first application, noting that no good reason had been shown for the failure to implement the Protocol before issuing the Claim. Had Sainsbury’s done so, the Judge was of the view that it would have obtained all the relevant information it needed to reassess whether proceedings should have been brought against that party.
The second application was allowed in part. Here the Judge felt that the party seeking indemnity costs had himself not engaged in the pre-action correspondence “as constructively” as he might have done and had further given inaccurate information during that process. However, the position changed once a Defence had been served. Sainsbury’s ought to have reassessed its position. Had it done so, it should have realised that its claim was liable to be struck out or be the subject of an adverse summary judgment application. The Judge made it clear he was not saying that a party automatically has to accept assertions made in a defence, but it must consider them in terms. Accordingly, the second party was allowed its costs on an indemnity basis but only from the date of the first Case Management Conference.