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24.2
The consultation response
As discussed in relation to Proposal 32 concerning the summary assessment of costs,
respondents to the consultation were generally supportive of employing immediate
costs sanctions to deter and compensate against unreasonable interlocutory behaviour.
Proposal 51 received support on a similar basis.
However, several respondents
were worried that a rule linking adverse costs orders to procedural misbehaviour might
encourage self-serving complaints, petty attempts at point-scoring and satellite
litigation over costs.
(a)
Thus, while the Bar Association and the BSCPI supported "an approach
whereby specific costs rules are formulated or re-formulated so as to deter
unmeritorious applications", they were worried that Proposal 51 might result in
"litanies of fault inveighed by one party against the other" and that the parties
might "paper the file with correspondence to lay the ground for complaints to be
made at the time for submissions of costs about an opposing party's conduct."
(b)
Other respondents
emphasised the need for judicial acuity in correctly
assessing the reasonableness or otherwise of interlocutory conduct and applying
the rule with consistency.
(c)
The support of one of the firms of solicitors was subject to the qualification that
it should not be tied to the overriding objective.
Notes
Among others, by the Law Society, the BCC, one set of barristers' chambers and two firms of
solicitors.
A similar concern was expressed by a set of barristers' chambers.
Including two firms of solicitors.
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