Lambourne v Marrable (No 2)

In Lambourne v Marrable (No 2), the applicants, former attorneys, brought proceedings against the principal under the Powers of Attorney Act 1998, seeking a range of declarations and orders. The applicants were mostly unsuccessful in their claims, and they sought indemnity costs for the proceedings on the basis that the litigation was within the Court’s protective jurisdiction. The principal, the first respondent, argued that the costs should be on the standard basis due to the adversarial nature of the proceedings and sought an order to set aside the ex parte interlocutory orders that had been made earlier in the litigation.

The court considered whether the litigation was adversarial and whether the applicants or the first respondent should bear the costs. It also assessed whether the costs should be on an indemnity or standard basis, particularly in light of the ex parte interlocutory orders that denied the first respondent access to personal funds to pay for legal representation. The court found that the ex parte orders included a declaration that was unknown to the law and that the applicants had failed to make proper enquiries and bring all adverse matters to the Court’s attention at the ex parte hearing. The first respondent had to apply to set aside the ex parte orders, and the costs to do so should be on an indemnity basis.

The court determined that the litigation was adversarial and that the first respondent should pay the costs of the proceedings on the standard basis. It also decided that orders should be made to put the parties in the position they were in before the ex parte interlocutory orders were made. The court considered the applicants' request to be discharged from all undertakings given during the proceedings, but it found that one undertaking should not be discharged.

The court made several orders, including that the first respondent pay the applicants' costs of the proceedings on the standard basis, that the first respondent be put in the position they were in before the ex parte interlocutory orders were made, and that the applicants be discharged from all but one of their undertakings.