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CPR 44.2 looks at the conduct of the parties when considering whether to make a costs order and, if an order is to be made, the amount of costs to be ordered. Where a judge considers making a costs order designed to punish one party for its perceived conduct, it is essential that those acting for that party are provided with the opportunity to properly respond on the points before the order is made. This requirement was highlighted in Dorman v Clinton Devon Farms Partnership, an appeal from a judge who had made an order for indemnity costs order on his own initiative. On appeal, it was held that there was a lack of justification for the costs orders made and the judge had been incorrect in his view that the defendant had caused the substantial delays in the case. For an insight, see News Analysis: Recusal applications, apparent bias and appeal of case management decisions (Dorman v Clinton Devon Farms Partnership).
When deciding whether to make a costs order, one of the factors the courts will take into account is ‘the parties' conduct’ (CPR 44.2(4), CPR 44.2(5)). The different aspects of a party’s conduct the court can consider are listed as:
conduct before the proceedings, in particular, the extent
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