Litigation Cases Review – September 2026

Pre-action costs liability

Where a claim is issued but the defendant is never served and incurs costs during the pre-action protocol stage, the court can award costs against the claimant. The defendant in this libel action breached the protocol process by responding late to the letter of claim. In the absence of a limitation standstill agreement, the claimants had to issue proceedings to protect their position. Applying CPR 44.2, the defendants were only entitled to one-third of their costs (Clarke & Clarke v Porthcawl Town Council).

Small claims track and unreasonable costs

The small claims track is a costs neutral regime designed for under-resourced and vulnerable litigants. Costs can be awarded against a party for unreasonable behaviour but this should be interpreted against that background. The withdrawal or unsuccessful pursuit of a claim should not in itself be considered unreasonable. The Court of Appeal set aside the order for costs against the claimant (Orton v Barclays