Settlement without trial

Brawley v Marczynski CA [2002] All ER (D) 110

There is no ‘tradition’ of there being no order as to costs where a dispute is settled, except as to costs, without judicial intervention. The court has the power to make an order as to costs where a matter has been resolved without a trial. But how should the court proceed? Whilst recognising that costs applications have to be entertained and resolved, this should not involve litigating the case for all the world as though the substantive issues need to be resolved for their own sake. In some cases it will be obvious that the claimant would have won if the substantive issues had been fought to a conclusion, and in other cases it would be obvious that the defendant would have won. However, cases will arise where it will not be obvious which side would have won had the substantive issues been brought to a conclusion. How far in these cases the court will be prepared to look into the substantive issues will depend on the circumstances of the particular case, not least the amount of costs at stake and the conduct of the parties. In the absence of a good reason to make any other order, the fallback is to make no order as to costs. It is irrelevant whether a party is legally aided or not; the overriding objective is to do justice between the parties without incurring unnecessary court time and additional costs.