[1] On 17 March 2025 I granted the applicant leave pursuant to s 59(2) of the Personal Injuries Proceedings Act 2002, thereby effectively altering the limitation period applicable to an intended Claim for damages for personal injuries.[1] The appropriate order as to costs is now contested.
[2] The respondent contends that its costs of, and incidental, to the application should be paid by the applicant, on the standard basis. It primarily relies on the fact that the applicant successfully sought the indulgence of the Court and that, in the primary judgment[2] I identified the real cause of the dilemma as the applicant's then solicitor's failure to protect the applicant's limitation period position when correspondence previously sent to the respondent went unanswered. The respondent points to the decision in Folwell v Mayer(No. 2)[3] as an example of when an order such as that sought by the applicant was properly made, and it submits that the factual comparability is persuasive in the current matter.
[3] The applicant contends there should be no order as to costs. It is a guiding principle, and not a rule, that a party seeking the Court's indulgence may be required to pay the costs of the application. There are examples of departures from that principle. In the present case, it is submitted that the respondent unreasonably maintained that a complying Part 1 Notice had not been served and, if the respondent had accepted that it had been served, it was likely that the application would not have been contested. Further, it is submitted, in reliance on my observations at [40] of the primary judgment, that the prejudice suffered by the respondent would likely have been ameliorated by a correct understanding on when service of a complying Notice occurs meant that that basis of objection to the application was of little moment.
[4] I accept there is no actual rule that a party successfully seeking the indulgence of a court must pay their opponent's costs; it is a guiding principle only.[4] While the issue must be determined on its own facts, the principle remains a weighty consideration.
[5] While the respondent did not concede that a complying Part 1 Notice had been served, it cannot be said that it pressed the point with any vigour.[5] My observation at [40] of the primary judgment was a finding in the course of what I consider was a reasonably arguable case on the primary application, which required a number of factors to be balanced. It was not meant to suggest that the point was not fairly arguable.
[6] Folwell v Mayer (No. 2) is not a binding comparable authority, but it is broadly factually comparable. It demonstrates how the discretion was exercised in those particular circumstances. However, what must be determined is the exercise of the discretion in the actual circumstances of this matter.
[7] Ultimately, the need for the primary application arose through the failure of the applicant's then solicitor to protect her position. Even had the respondent's solicitor understood the correct state of the law as to service of a complying notice, and chosen to do nothing, it seems that the same outcome would have occurred. The position taken by the respondent was not unreasonable, in the current circumstances. In my view, the applicant should pay the respondent's costs of the application.
[8] The respondent does not press for an order that the applicant's solicitors pay its costs, as occurred in Folwell v Mayer (No. 2). It is said that that position is taken on the basis of an understanding gained from discussions with the applicant's solicitors. Given the point is not pressed, I will not embark on a consideration of it. Ultimately it will be a matter for resolution between the applicant and her solicitors.