The High Court has ordered Lyndsey Farrell to pay the defendants’ costs of their successful motion to set aside a default judgment, finding that she acted unreasonably by resisting it. Enforcement of the costs order is stayed until the underlying proceedings have been finally determined.
Mr Justice Garrett Simons delivered the costs ruling on 24 July 2024. The motion to set aside the default judgment had succeeded for reasons given in a separate judgment on 24 June 2024. The ruling addressed only who should bear the costs of that motion.
The court said costs generally follow the event, but applications to set aside default judgments can require a broader assessment of the circumstances. A successful defendant may still be ordered to pay the other side’s costs, depending on matters such as the parties’ conduct and whether it was reasonable to contest the application.
In this case, the court said the default judgment against two of the three defendants had been obtained irregularly. The High Court had been told, mistakenly, that a proposed amendment to an earlier “unless order” could be made on consent. The defendants’ solicitor had raised the issue in correspondence, and it was also set out in the affidavit supporting the motion.
Despite that warning, Farrell contested the motion. The court said the opposition led to the case being assigned a two-hour hearing in the Non Jury List, increasing the parties’ legal costs. It concluded that resisting the motion was objectively unreasonable.
Farrell’s counsel argued that the full details of the “special circumstances” relied on to set aside the judgment—including a medical emergency suffered by the defendants’ solicitor—were not disclosed until a second affidavit. The judge accepted that this submission was correct to that extent, but said it did not answer the costs claim: the irregularity had been raised earlier, and the opposition continued after the second affidavit was filed.
The defendants were awarded the costs of the motion, including written submissions, any reserved costs relating to it, and the costs hearing. If the parties cannot agree the amount, it is to be assessed by the Office of the Chief Legal Costs Adjudicator under Part 10 of the Legal Services Regulation Act 2015. The order is stayed pending the final hearing and determination of the proceedings; the costs amount was not specified.