Springwell, the unsuccessful party in JP Morgan v Springwell, failed to establish a case that the investment bank was liable for Springwell's investment losses, and the High Court awarded costs on an indemnity basis against it.
Normally, an unsuccessful party would only have to pay the other side's costs insofar as they were proportionate. The unsuccessful party might expect to pay around 60% of the successful party's costs. On the indemnity basis, however, Springwell, the losing party, had to pay up to 80% of most elements of JP Morgan's costs, which totalled £24 million.
Springwell had made numerous allegations, including of negligence, misrepresentation, misconduct and dishonesty. The judge concluded that Springwell's conduct in the case had been unreasonable and had lacked an appreciation of commercial reality. Furthermore, the judge considered that there was a "wider commercial consideration" that a party should be discouraged from seeking to "tear up the contractual documentation upon the basis of which he has been trading."
In an economic environment in which many investors will be seeking to make good investment losses through litigation, this costs judgment is a salutary reminder to potential litigants of the need to conduct litigation in a commercially aware manner.