Silence can be taken into account when assessing costs

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If a claimant chooses to discontinue his claim, there is a presumption that he is liable for the defendant’s costs. However, if the claimant has effectively been compelled to issue proceedings because the defendant has failed to respond to pre-action correspondence, the courts may exercise discretion and order the defendant to pay the claimant’s costs.

The claimants in the case Nelsons Yard Management Company and Others v Eziefula [2013] All ER (D) 216 were the owners of premises in Camden. The defendant owned the adjacent property. In 2007, the defendant started carrying out works to his property. Between May and July 2007, the claimants wrote to the defendant on four separate occasions to notify him of their concerns and request that their surveyor be allowed to inspect the premises. Given the extent of the works, the claimants were concerned that the excavations would affect the structural integrity of the foundations to their properties. Although the letters were received by the defendant, he did not reply to any of them and he did not allow access for the inspections.

In January 2008, the claimants issued proceedings, alleging that the defendant’s works were being carried out without planning permission and that the defendant was in breach of his obligations pursuant to the Party Wall Act 1996…

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