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24.3
The Working Party's view
It is the Working Party's view that Proposal 51 should be adopted subject to certain
qualifications. The concerns voiced are legitimate and judicial training for case
management should address those concerns. Judges should be encouraged to see
through self-serving correspondence and petty point-scoring exercises, treating such
conduct as itself objectionable.
The principle that costs may be ordered to "follow the event" should accordingly
remain the usual approach when dealing with the costs of an action. The winner of the
action should generally get the costs of the action, including the costs of any
interlocutory applications ordered to be "in the cause". The "follow the event"
principle should also remain an important basis for dealing with interlocutory costs but
should not be accorded dominant status as the normal order. The use of costs orders to
deter unreasonable interlocutory behaviour ought to be given equal, if not greater,
prominence.
Using costs orders as a primary means of discouraging unreasonable procedural
conduct at the interlocutory stages, whichever party ultimately wins the case, is an
important feature of the reforms proposed and has the general support of those
consulted. This underlies the summary assessment of costs upon disposal of each
interlocutory application instead of waiting for an overall accounting at the end of the
proceedings. Appropriately stringent costs orders have been recommended above, in
relation to inappropriately verified pleadings, over-elaborate witness statements and
expert reports, unnecessary interlocutory applications or appeals, seeking relief from
self-executing sanctions, unnecessarily insisting on oral hearings to challenge
decisions taken on the papers, and so forth.
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