In <span class="news-text_italic-underline">BB and others v Khayyat and others [2025] EWHC 379 (KB)</span>, the High Court dismissed an application by four claimants (“<span class="news-text_medium">C</span>”) under CPR 38.6 to disapply the usual costs order following the discontinuance of their claim. The court considered the principles outlined in <span class="news-text_italic-underline">Brookes v HSBC Bank plc [2011] EWCA Civ 354</span> and the extent of the court's discretion to depart from the costs presumption under CPR 38.6.
C argued that agents of the state of Qatar had conspired to pressure them into discontinuing their claims, justifying the disapplication of the usual costs order. While C did not allege that the defendant bank (“<span class="news-text_medium">D</span>”) was directly involved in this conspiracy, they contended that the court should depart from the usual rule, despite the absence of evidence proving unreasonable conduct by D. C relied on the sixth principle from <span class="news-text_italic-underline">Brookes</span>, which allows for departure from the usual costs rule in cases where unreasonable conduct by the defendant has influenced the discontinuance.
C further cited <span class="news-text_italic-underline">Arcadia Group Ltd and others v Telegraph Media Group Ltd [2019] EWHC 223 (QB)</span>, arguing that the principle in <span class="news-text_italic-underline">Brookes</span> did not preclude consideration of third-party conduct.
The court rejected C's application, finding no rule requiring a discontinuing claimant to show that a change in circumstances was directly caused by the defendant's unreasonable conduct. The court emphasised that the claimant must meet the civil standard of proof, establishing their case on the balance of probabilities.
The court also dismissed C’s argument that the reference to "cogent reasons" in <span class="news-text_italic-underline">Brookes</span> merely required the claimant to show that their case for third-party conduct was "more than fanciful". C’s evidence failed to meet the required standard of proof and the court found it inappropriate to draw conclusions based on allegations of conduct by a party not present in the proceedings. The fact that D had not refuted C’s allegations was irrelevant.
As a result, the court upheld the presumptive costs rule and refused to disapply the usual costs order following discontinuance.
