The Court held that a consent costs order made at the time of setting down preliminary questions for determination (ordering costs be 'costs in the proceeding') did not foreclose a later application for costs to follow the event once the preliminary questions were determined. Where preliminary questions dispose of an entire discrete area of controversy found to constitute a substantive abuse of process, costs of the determination should follow the event, but the Court declined to order indemnity costs where the plaintiff's representatives did not appear conscious their endeavour was an abuse of process and the construction arguments were at least arguable.
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