You Can Stop the Case, But Not the Costs: Wei v Long’s Expensive Plot Twist!
You’ve fought hard, you’ve secured some relief, and now you’re ready to pull the plug on the case. But wait—before you hit ‘discontinue,’ have you thought about the costs?
In Wei & Ors v. Long & Ors, the High Court considered the question of costs after a defamation and harassment action was discontinued. Initially, the Claimants had sought relief from the Court, which included disclosure of allegedly defamatory information and an injunction. However, they decided to discontinue their claim after having only little success getting any respite. The disagreement before the Court resulted from the Defendants’ attempt to recover the significant legal costs they had paid in defending the case.
The primary issue in this case was whether the presumption under CPR 38.6, which typically permits the Defendant to recover costs when the Claimant discontinues, could be overridden due to the Claimants’ partial success. The Claimants contended that their partial success, especially in obtaining an injunction and the removal of defamatory posts, should lessen their responsibility for the Defendants’ costs. Nevertheless, the Court determined that despite this partial success, the Defendants were still entitled to their costs because the Claimants had discontinued the claim, and their overall success was minimal.
The Court evaluated the argument presented by the Claimants regarding their liability for the total costs. It noted that while the Claimants achieved some procedural relief, they failed to obtain the primary substantive relief they initially pursued. The judge highlighted that achieving partial success, like securing an injunction or eliminating defamatory content, does not change the reality that the Claimants ultimately withdrew from the case. Consequently, the Defendants were recognised as the prevailing party, and their right to recover costs was upheld.
One of the key elements of the case was the interim payment on account of costs. The Defendants had requested an interim payment of 60% of their total costs, arguing that their costs were predictable, detailed, and well-managed. The Court agreed, stating that the Defendants had provided clear evidence of their costs and the work involved in defending the claim. The judge ruled that the 60% payment on account was justified, reinforcing the increasing trend of Courts ordering substantial interim payments when the costs are predictable and detailed. This amount was to be paid by the Claimants immediately.
The Court also ruled on the enforceability of the interim payment, confirming that once ordered, such payments are immediately enforceable. This meant that the Claimants were required to pay the Defendants the interim sum promptly, without waiting for the final assessment of costs. The judge emphasised that an interim payment is treated as a debt owed by the Claimant, and therefore, it can be enforced right away. This reinforced the financial risk for Claimants, especially in cases where they choose to discontinue their claim.
The case ultimately highlighted several important implications for Claimant Solicitors. First, it reaffirmed that discontinuance does not automatically relieve Claimants from paying the Defendant’s costs, especially where the Defendant has incurred significant legal expenses. Even limited success in securing some relief will likely not reduce the financial liability. Additionally, Claimant Solicitors must be aware of the potential for substantial interim payments on account, which can be immediately enforced. Effective costs management and early budgeting are crucial to prevent unexpected financial burdens, particularly if discontinuance is being considered as a strategic option.
Sarah Hope, Costs Lawyer
14.08.2025