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Temple Garden Chambers is a leading common law set based in London and The Hague.
With excellence from top to bottom Chambers provides a first class service in a number of different fields.
25/07/2023
Thakkar and others v Mican and AXA Insurance UK plc 24.7.23, High Court, Chancery Division on appeal from HHJ Backhouse and before Mr Justice Richard Smith.
At trial, the Defendants had alleged that the Claimants were fundamentally dishonest. HHJ Backhouse rejected the defence and awarded judgment to the Claimants. However, the Claimants were unsuccessful in their application for indemnity costs of the action. The Claimants appealed, arguing that the learned Judge had misdirected herself and that the weight of the evidence justified an indemnity costs order and that the trial Judge erred in refusing to award indemnity costs where an allegation of fundamental dishonesty was made and pursued but unsuccessful. Paul McGrath appeared for the Defendants and submitted that the experienced Judge had clearly directed herself properly in spite of short reasoning (relying on Piglowski [1999] 1 WLR 1360 and Whaleys [2017] EWCA Civ 2143) and that (i) there was no rule or practice suggesting that indemnity costs ought to be ordered where an allegation of fundamental dishonesty or fraud was unsuccessfully pursued (relying on Excelsior [2002] EWCA Civ 879 (para’ 32), Axnoller [2022] EWHC 1162 (para’ 39), Clutterbuck [2015] EWHC 3233, Bishopsgate [2021] EWHC 2628 (para’s 10-16), Libyan Investment Authority [2023] EWHC 434 (para’ 9)and that (ii) in any event, the Judge’s decision was plainly within the wide ambit of her discretion and could not be said to be ‘wrong’ in accordance with Tanfern [2000] 1 WLR 1311, Lamport [2023] EWHC 667 and Gill [2023] EWHC 403.
Mr Justice Richard Smith rejected the Claimants’ contentions and agreed with the Respondents. There was no misdirection, no rule of law that unsuccessful allegations of fundamental dishonesty necessarily led to indemnity costs orders and no error of law – the Judge acted perfectly within the ambit of her discretion.
The appeal was dismissed and the Claimants were ordered to pay the Respondents costs of the appeal, which were to be set off against the Claimants’ own costs that are to be assessed in due course.
24/07/2023
