An unsuccessful party will usually be ordered to pay a successful party’s costs of legal proceedings but it is for the court, standing back and taking a common sense, broad brush and pragmatic approach to determine where the overall balance lies between the parties.
In Ineos Upstream Limited and others v Persons Unknown and others [2023] EWHC 214 (Ch) the court ordered the claimants to pay the costs of D6 and D7 in relation to injunctions originally granted in 2017.
The claimants’ sought prospective injunctions against five categories of Persons Unknown by reference to characteristics including trespass, nuisance, obstruction and harassment in relation to a number of proposed fracking sites.
Anticipatory injunctions were granted against all categories of defendants in July 2017. The harassment injunction was discharged in December 2017 and two further categories were discharged by the Court of Appeal in April 2019.
Those relating to trespass and nuisance remained and were remitted for determination of whether interim relief should be granted under the Human Rights Act 1988. They were subsequently discharged in March 2022 and discontinued by the claimants in July 2022 following a material change of circumstances.
D6 and D7 were added as defendants in 2017 on their application to discharge the July 2017 order which they considered to be an infringement against the right to protest enshrined in Articles 10 and 11 of the European Convention on Human Rights and the 1988 Act.
Although they took an active role in a hotly contested hearing in October 2017 the court made no order as to costs in respect of either party’s claims in December 2017.
In June 2019 the Court of Appeal ordered the claimants to pay D6 and D7’s costs of the appeal. The costs below would be reconsidered by the court in conjunction with the remitted issues which were never determined because the claimants did not list them for hearing.
Standing back and looking at matters afresh the court concluded that, overall, the defendants were significantly more successful than the claimants and there was no basis for departing from the usual order.
Three injunctions were discharged; two were maintained pending further argument but were subsequently discharged and the claims discontinued. A change in circumstances was not a neutral factor weighing in favour of the claimants. It was no different to choosing to discontinue or withdraw a claim which would lead to an adverse costs order.
Louise Clark is a property law consultant and mediator
