A History of Misconduct

The judgment of Deputy Master Friston in Andrews & Smith v. Retro Computers Ltd & others [2019] EWHC B2 (Costs) will be of interest to any practitioner or litigant seeking costs, or looking to reduce a costs award, on the basis of misconduct.

Ultimately, the Deputy Master’s decision was a straightforward one: the Defendants had been ordered to pay the Claimants’ costs by the trial judge and the matter remitted to the Senior Courts Costs Office for an assessment. The Defendants alleged misconduct on the part of the Claimants during the trial and sought a partial or total disallowance. Deputy Master Friston found that he had very limited power to impose any sanctions for the alleged misconduct and that it ought to have been raised before the trial judge, noting “a costs judge is bound by terms of the costs order as properly interpreted, and there is nothing in rule 44.11(1)(b) that allows a costs judge to revisit the formulation of that order”.

The Deputy Master’s decision examines the relevant procedural provision (CPR 44.11) in historical context, considers the standard of misconduct required to reach the threshold to engage the provision and then discusses the sanctions available to the Court. It seems likely that the judgment will be adopted by many practitioners and judges as a guide to the interaction between alleged misconduct and costs awards. 


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