Judge: Lavender J.
Costs were awarded on the indemnity basis where the Claimant had unreasonably advanced certain evidence and sought to bolster its case with untrue evidence. In the circumstances, the Defendant’s refusal to enter into mediation had not been unreasonable.
Where a Claimant’s case had been dismissed, the Court had to decide whether the Defendant was entitled to its costs on the indemnity basis and also whether it should be deprived of some of its costs as a result of refusing to enter into mediation. It was the Defendant’s position that the Claimant’s case had been so weak that its decision to pursue it was, in itself, sufficient to justify assessment on the indemnity basis. The Court had rejected much of the Claimant’s evidence and found its witnesses to be unreliable. As to refusal to mediate, the Defendant submitted that its refusal had been reasonable, as the issue was whether or not a contract existed and it had been confident of success. It could not have accepted any offer and there was no sense in incurring the costs of a pointless mediation. The Court held that it had been unreasonable for the Claimant to advance certain witness evidence and that it had sought to bolster its case with untrue evidence. This amounted to unreasonable behaviour of a sufficiently high degree to merit the award of costs on the indemnity basis. With regard to refusal to mediate, the Defendants had raised the issue of the credibility of a key witness; that the Claimant had failed to disclose the true nature of the allegations against that witness, who had then given untrue evidence in Court. The Defendant’s refusal to enter into mediation was not unreasonable.