Conduct is relevant when the Court considers what Order to make on costs. Where a party has acted unreasonably they are unlikely to recover their legal costs, even if they win the case.

When considering whether a party has acted unreasonably the Court specifically has to take into account the following conduct by a party:

  • The extent to which either party has followed any pre-action protocol or the Practice Direction (Pre-Action Conduct)
  • Whether either party has unreasonably raised, pursued or contested any allegation or issue
  • How each party has pursued or defended their case or a particular allegation or issue
  • Whether a party who has succeeded in their claim, in whole or in part, exaggerated their claim

What is considered unreasonable conduct can be very case specific. However, the Court of Appeal has made it clear that a refusal to mediate or attempt to settle a case is a relevant factor when assessing costs. In the case of Rolf v De Guerin [2011] EWCA Civ 78, the winning party had refused to mediate because they wanted their day in Court. The Court did not even enter into speculation as to whether mediation may have been successful, but having won the case they were denied all of their legal costs.