Pre-action misconduct

McMinn v McMinn [2003] 2 FLR 839

In Hall v Rover Financial Services (GB) Ltd [2002] EWCA Civ 1514 (21/ LL p117) the Commercial Court held that dishonest conduct anterior to the proceedings was not conduct to be taken into account under CPR rule 44.3(4)(a) in considering entitlement to costs, but in Groupama Insurance Co Ltd v Overseas Partners [2003] EWCA Civ 1846 (23/ LL p27) the Court of Appeal held that this was no more than a matter of Commercial Court practice and the rules did not contain any limitation as would shut out reliance in an appropriate case on misconduct in and about the matters which triggered the litigation. It is difficult to imagine worse pre-action misconduct than in this case, in which the husband murdered his wife. The husband nevertheless succeeded in his claim against the executors of the wife’s estate that property had been held as tenants in common and that he was therefore entitled to ownership of half of it. Because of the husband’s pre-misconduct the Court refused to award him his costs, but because of the executors’ failure in the litigation, the Court was unable to order the husband to pay their costs, even though their conduct had been reasonable.