In AVB vTDD the Court was confronted with some interesting and unusual facts which it is not the purpose of this note to explore. Tugenhadt J.’s judgment on costs, however, upheld an interesting principle of costs law stemming from Devine v Franklin (costs) [2002] EWHC 1846. 

In Devine v Franklin, Gray J held that "unreasonable behaviour" prior to the trial of the action included not merely pre-action litigious activities (such as trying to keep a case in the multi-track) but also matters relating to the cause of action itself (in that case, the Defendant’s unreasonable conduct at the wheel of his car). That case was decided under CPR r. 27.14(2)(g), but Tugenhadt J. (in common with the editors of the White Book) considered that the underlying principle applied equally to "conduct" under CPR r. 44(2). Accordingly the Claimant’s conduct in provoking the Defendant to commit the wrongs for which she was injuncted, was a relevant consideration in depriving him of most of the costs of the action. 

If you are interested in the White Book’s comments on Devine v Franklin, you will encounter an irritating difficulty looking them up in the current (2014) edition. In the Table of Cases at the front, the case is indexed against note "44x.3.17", but you will search volume 1 in vain for that note. The suffix "x" means that the relevant note is to be found in the the 2013 edition of the White Book. (Never discard old editions of the White Book!)

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