Variation of budget after trial, oppressive behavior, Part 36, and a payment on account of costs (Barry & Barry v Barry)
Dispute Resolution analysis: In this case, the court considered various points, including the claimants’ variation of a budget after trial, whether the claimants should be entitled to the benefits of CPR 36.17(4) having beaten their own Part 36 offers and the appropriate amount for a payment on account of costs. The court allowed an upward variation in relation to the trial preparation and trial, as the application had been made promptly and given there had been a significant development. However, the court rejected the upward variations for disclosure and witness evidence on the basis that the applications had not been made promptly and the claimants could not establish any oppressive behavior by the defendant. The court was not satisfied that it would be unjust to award the claimants the usual benefits of CPR 36.17(4) where they had made a reasonable offer before the proceedings had been issued. The claimants demonstrated a genuine intention to resolve the dispute. By contrast, the defendant showed no such intent. The court then awarded the claimants 55% of their incurred costs, 90% of the original budgeted costs and 80% of the upward variations. Written by Nicholas Lee, costs lawyer & mediator at Paragon Costs Solutions.