An indemnity costs order – for costs beyond the ordinary “party / party” order – sometimes feels like the pot of gold at the end of a rainbow: enticing but, too often, elusive.  

Today we deal with the tail end of a larger dispute.  The second defendant was successful and the beneficiary of an ordinary costs order against the plaintiff.  

Today’s application sees the second defendant seeking a variation of that order to become an indemnity costs order.  The second defendant asserted that the plaintiff’s conduct of the litigation was so unusually unreasonable it should ground an indemnity cost order: [8].  

The Court accepted that: [15].  In so finding it noted: the failure to comply with a guillotine order, leading new evidence in a “reply” affidavit: [16], failing to cause expert evidence to comply with the Code: [17], and the failure of the plaintiff’s solicitor to make himself available for his “crucial” cross-examination, leading to two adjournments: [18].  

At [24] attributed the plaintiff’s “plainly unreasonable” to the lawyers, though on instructions.   

While not making cost orders against the lawyers, the Court commented ominously: “who should ultimately be liable is a matter of determination between the plaintiff and her legal advisers.”