The Dekagram: 29th June 2026

This week Sarah Prager KC examines a case featuring litigation conduct on the part of the claimant said to be so egregious that it should sound in costs; and another relating to post-judgment requests for ‘clarification’ so egregious that the judge refused to answer them. In other news, readers are reminded that Sarah and Anirudh Mandagere will be giving a webinar on Thursday 2^nd July on the surprising recent developments in the law relating to Athens and Montreal Convention claims – essential viewing for litigators in this area. You can sign up to the webinar here: Liability for Personal Injury in Carriage by Sea and Air: Is Everything We Thought We Knew Wrong? – Deka Chambers – Barristers Chambers

Balachandra v NHS Commissioning Board (Costs) [2026] EWHC 1571 (KB): to what extent does conduct sound in costs against a successful claimant?

Readers will of course be aware that under CPR Part 44.4(3) when assessing costs:

The court will also have regard to –

(a) the conduct of all the parties, including in particular –

(i) conduct before, as well as during, the proceedings; and

(ii) the efforts made, if any, before and during the proceedings in order to try to resolve the dispute;

(b) the amount or value of any money or property involved;

(c) the importance of the matter to all the parties;

(d) the particular complexity of the matter or the difficulty or novelty of the questions raised;

(e) the skill, effort, specialised knowledge and responsibility involved;

(f) the time spent on the case;

(g) the place where and the circumstances in which work or any part of it was done; and

(h) the receiving party’s last approved or agreed budget.

In Balachandra David O’Mahoney, sitting as a Deputy High Court Judge, was called upon to consider whether the conduct of the claimant when litigating her claim should result in a reduction of the costs payable to her, in circumstances in which it was conceded that she had succeeded in the claim and that an issues-based costs order was not appropriate. The defendant contended for a whopping reduction in the order of 45%, but succeeded in securing a reduction of only 10%, largely because of the defendant’s own conduct in continuing to defend the claim and pursue a counterclaim.

The conduct relied on by the defendant amounted, amongst other things, to a failure on the part of the claimant to engage in correspondence aimed at resolving the case, including failure to provide crucial documentation until only six weeks before trial, failure to agree a stay so that negotiations could be undertaken, and an alteration to the factual basis for the claim which occurred partway through the trial.

The starting point, as the judge observed, was that the claimant had been partially successful in her claim and was therefore entitled to her costs. Nor had the defendant made a relevant Part 36 offer. However, it was just to depart from the usual rule that costs follow the event because the claimant had not complied with its standard disclosure obligations [13, 14]:

The pre-action correspondence demonstrates that the defendant was making reasonable attempts to obtain the information it thought it required from March 2024. The claimant only provided it under an order for specific disclosure in late 2025. Had the claimant engaged with the earlier correspondence and provided further information, it seems to me that the issue of entitlement to payment for the year 2020-2021 might well have been resolved earlier. Having said this, that argument only takes the defendant so far in this case because it had the requested material (and more) six weeks before the trial, but decided not to analyse it and continue its defence of the claim. As I said in my judgment that position was unsatisfactory.

In order to deal with Ms Thelen’s argument with respect to the pre-action correspondence, it seems to me that I need to balance the claimant’s conduct which seems to me to have contributed to the incurring of unnecessary costs and the defendant’s conduct in not analysing the (albeit late) information and continuing unsuccessfully to defend its original decision in respect of the year 2020-2021. Taking the matter in the round and doing the best I can, it seems to me that this balance can be achieved by awarding the claimant her costs of the claim but deducting 10 % from it.

If the claimant had provided disclosure in a timeous way, she would not have been subjected to a 10% deduction; on the other hand, if the defendant had reacted more swiftly to the eventual provision of that disclosure, it seems likely that the deduction would have been greater.

Comment

It may seem to some readers that a 10% deduction in the face of a prolonged period of noncompliance with the CPR rules on disclosure is a harsh decision as far as the defendant was concerned. On the other hand, however, any argument the defendant might have had that if the disclosure had been made earlier it would have been able to protect itself on costs by way of Part 36 offers was undermined by its inactivity once the disclosure had been provided. Litigators should take from this judgment both that correspondence seeking to narrow issues should be taken seriously and dealt with properly, and that once it has been (no matter how late in the day) proactive steps should be taken to triage any further information provided and to take action in the light of any additional evidence that may come to light. That said, all costs decisions are fact sensitive and on these particular facts it may be that a different judge, on a different day, would have granted a reduction much closer to that contended for by the defendant on the basis of failure to engage in alternative dispute resolution on the part of the claimant, who may consider herself fortunate indeed not to have been penalised more severely.

About the Author

Called to the Bar in 1997, Sarah Prager KC has been listed in the legal directories in travel and personal injury law for many years, and, more recently, listed in aviation as well. Together with Matthew Chapman KC, Jack Harding, Dominique Smith and Tom Yarrow, she co-writes the leading legal textbook in the area, and has been involved in most of the leading cases in the field in the last few decades. She undertakes purely domestic high value personal injury work as well as cross border work and has a wealth of experience of difficult and sensitive cases, including serious sexual assault and cases involving children.

Stokes v Stokes & Another [2026] EWHC 1576 (Ch)

In this unusual case His Honour Judge Richard Carter responded firmly but (at least in the view of the author) entirely fairly to counsel seeking clarification of a judgment.

The underlying facts are of no concern to the casual reader; suffice to say that the claimant sought recovery of money she paid to her grandson on the basis that it was provided as a loan and not a gift. The judge did not accept this, and the claim therefore failed.

Following circulation of the draft judgment counsel for the claimant raised no fewer than 52 “Requests for corrections, clarifications and amplifications to the Draft Judgement (sic)”. At paragraph [123] of the judgment HHJ Carter set out his response to a sample of them:

i)     10 – It is unclear what relevance this issue has to the determination of the issues. It is correct that I have not made any finding about the motivation of Richard and Helen, but it is wholly unnecessary to do so. See also the list of issues.

ii)     32 – this is bare assertion of the pleaded case.

iii)    43 – I fail to understand what is being questioned – I have been clear about my assessment of the case on misrepresentation.

iv)    48 – it is clear from the judgment what my reasoning was and I do not understand why such a request is being made.

v)     51 – a request that various documents be considered. Where I have referred to documents within the judgment I have done so because they were relevant to my reasoning. I do not refer to every document within the judgment.

It is never good news when anyone says ‘I hesitate to criticise’, and so it was in this case at paragraph [124], which reads:

“I hesitate to criticise Counsel within this judgment, but I do not consider that these requests are appropriate or necessary to enable the parties to understand the reasoning of my decision. I am of course aware of the decision of Munby LJ in Re A (children) (Judgment: Adequacy of Reasoning). I do not consider that my (lengthy written) judgment is defective for a lack of reasons, or that it is necessary to provide further reasons as sought by the Claimant. It is of course open to the Claimant to seek permission to appeal by judgment.”

Ouch!

A moment’s thought will confirm that submitting 52 requests for clarification of a judgment could only end badly. Before refusing to answer them HHJ Carter reminded himself of the guidance given in R (Counsel General for Wales) v SoS BEIS [2022] EWCA 181 and in the notes to the White Book at 40.2.4. The latter contain the following observation:

“In Egan v Motor Services (Bath) Ltd [2007] EWCA Civ 1002; [2008] 1 All E.R. 1156, CA the Court of Appeal (1) noted and deprecated the growing practice of counsel writing to the judge upon receipt of draft judgment, asking him to reconsider his conclusions, and (2) stated that, (a) circulation of a draft is not intended to provide counsel with an opportunity to re-argue the issues in the case, and (b) only in the most exceptional circumstances is it appropriate to ask the judge to reconsider a point of substance; for example, where counsel feels that the judge (i) had not given adequate reasons for some aspect of his decision, or (ii) had decided the case on a point which was not properly argued or has relied on an authority which was not considered.”

Comment

It is not unknown, in the experience of the author, for clients to request that points be put to the judge on receipt of a draft order. This temptation should and must be resisted; any request relating to anything other than typographical errors or errors of fact must be assessed very carefully indeed before being passed on to the judge for consideration. A draft judgment is not an invitation for substantive amendments, any more than a draft pleading or skeleton argument is a request for the lay client to ventilate their views on the law. Neither is appropriate and each is likely only to irritate the recipient.

About the Author

Called to the Bar in 1997, Sarah Prager KC has been listed in the legal directories in travel and personal injury law for many years, and, more recently, listed in aviation as well. Together with Matthew Chapman KC, Jack Harding, Dominique Smith and Tom Yarrow, she co-writes the leading legal textbook in the area, and has been involved in most of the leading cases in the field in the last few decades. She undertakes purely domestic high value personal injury work as well as cross border work and has a wealth of experience of difficult and sensitive cases, including serious sexual assault and cases involving children.