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.