Indemnity costs

Webster v Ridgeway Foundation Schools [2010] EWHC 318 (QB)

The defendant, who was a pupil at the defendant’s school, was attacked by four Asian fellow pupils and three adults, who were convicted of wounding him with intent. When the claims were dismissed the defendants argued that the claimant should pay their costs on the indemnity basis which the judge awarded in respect of one part of the claim only, the human rights claim, because this was hopeless: to succeed, the claimants would have had to show that at the relevant date the defendants knew or ought to have known that there was a real and immediate risk that the child would be exposed to treatment which could be described as inhuman or degrading, something which it was impossible for the judge to do. However, the judge refused to award indemnity costs in respect of the remainder of the claim in relation to the systematic negligence claims based on the school’s allegedly inadequate approach to race relations and discipline. Although they failed, these claims were not hopeless. The judge also rejected an argument that it would not be unjust for the claimant’s ATE insurers to have to pay indemnity costs because they would have been entitled to a very high premium had the claim succeeded. While the defendant’s mother accepted that a collateral purpose in pursuing the proceedings was to bring the defendants to book, there was nothing improper in pursuing litigation for this purpose. A desire to obtain compensation can often coexist with a wish to demonstrate that the defendant has been at fault. It is only where an over-zealous claimant engages in unreasonable conduct that indemnity costs are justified.