This was one of the final decisions of Judge Bowsher QC before his retirement from the bench. Having found in favour of the defendants, he then had to consider the question of costs. Both defendants sought their costs on an indemnity basis.
The relevant test was whether or not, in all the circumstances of the case, it was just that the claimant should have the onus of having to pay the costs, which the defendants said were incurred unreasonably. For an award of indemnity costs to be made, the court must be satisfied that there has been some conduct that takes the case out of the norm.

Reference

Here the judge felt that the pleaded case and the supporting evidence was never from the very outset going to stand up and so never had any prospect of success. Therefore indemnity costs were awarded from the time when the case began.

Full case details

London Fire & Emergency Planning Authority vs Meritor Light Vehicle Systems (UK) Ltd and Anr, 11 September 2003, Technology and Construction Court, HHJ Bowsher QC

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Postscript

The general rule is that the "winner" of the litigation gets its reasonable legal costs. "Reasonable costs" means that it is rare to get all of one's costs. Furthermore, costs are assessed on either the "standard" or the "indemnity" basis. If costs are assessed on the indemnity then where there was an element of doubt about the reasonableness of the costs claimed, the court decides that point in favour of the party being paid. When costs are assessed on a standard basis, that element of doubt goes in favour of the paying party.