Jurisdiction(s):
United Kingdom

Costs: Promptness in budget variation; no oppressive behaviour; Part 36 indemnity costs, additional amount and enhanced interest; payment on account—Barry v Barry [2025] EWHC 819 (KB) (England and Wales)

Published on: 20 May 2025

Published by a LexisNexis Dispute Resolution expert

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Article summary

Variation of budget after trial, oppressive behaviour, Part 36, and a payment on account of costs (Barry & Barry v Barry) Barry and another v Barry [2025] EWHC 819 (KB)

What are the practical implications of this case?

There are several practical takeaways from this decision. It emphasises the need to move quickly to seek a variation of your costs budget when a significant development arises; hesitation may prove fatal to the application. The ruling also illustrates that a budget can be amended even where the relevant costs have already been incurred. The court further signalled a robust commitment to the purpose of Part 36 when a reasonable proposal is made but refused without any good reason. Part 36 is crafted to both encourage and punish; if the penalties are not enforced, the incentive disappears. Mr Justice Dexter Dias offered clear guidance on the threshold for oppressive behaviour, noting that the key phrase is ‘in seeking to cause’. On the facts, the defendant was not found to be seeking to generate unnecessary additional costs, nor to be acting with a deliberate aim to oppress or coerce his parents. It was concluded that a...

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