Date: 12 February 2007

It is pleasing to report success stories where the Painting case has been used to good effect in negotiating a favourable settlement in advance of trial or at trial itself in order to penalise an unreasonable claimant.

You may recall: the claimant was found to have intentionally exaggerated the claim and the defendant was regarded as the overall winning party despite having its payment into court beaten. Therefore, the defendant was entitled to its costs from the date of the payment into court.

We probably all sense when a claimant is behaving unreasonably (and it is not in every case!) for example by unduly protracting the matter, serving inflated schedules of loss and diversionary tactics with regard to the medical evidence i.e pursuing psychiatric issues over physical damage issues.

If, on top of this and in the face of the evidence (all the more so when liability has been admitted) a claimant makes no attempt to negotiate, we should encourage an expectation that the court will be asked to review overall conduct and make a penalising costs order.  Tips to follow:

• Consider this when making a payment into court which is significantly lower than the claimant’s expectation  - highlight the costs order which might be obtained if the claimant persists in pursuing the claim in an unreasonable way.

• Even if the claimant beats the payment into court, if their conduct has made it extremely difficult for the defendant to give an accurate assessment of the claim, make the application for a split costs order. A judge at Birmingham County Court recently ordered in one of our cases that the claimant should receive no costs (although successful in recovering some damages) as well as paying 50% of the defendant’s costs. A very satisfactory and deserved outcome.

• In costs negotiations, even if a costs order has been made in the usual way, if the final settlement is significantly under the pleaded case and there have been conduct issues, argue that the claimant’s costs should be significantly reduced to reflect their overall conduct with reference to Painting – this in addition to all other costs arguments, including proportionality.

Helen Tinkler