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Order 62 r 3 should accordingly be amended to distinguish between the costs of the
action as a whole and interlocutory costs, so that it no longer provides that an order for
interlocutory costs to follow the event should be made in default of the court ordering
otherwise. The list of exceptions presently set out in O 62 r 3 should also be re-
examined. Order 62 r 7 is probably already in sufficiently wide terms to accommodate
the costs sanctions to be prescribed in support of reforms such as those mentioned
above. It should, however, be amended so that the court is required to have regard to
the underlying objectives mentioned in relation to Recommendation 2 as well as to the
matters referred to in paragraph (2)(a) to (c).
Furthermore, in line with the Working Party's policy of avoiding front-loaded costs
where possible, the court should not assume the power to make adverse costs orders in
respect of the reasonableness of the parties' pre-commencement conduct, except in
cases covered by an applicable pre-action protocol and in accordance with the terms of
such protocol.
Recommendation 122: The principle that the costs should normally "follow
the event" should continue to apply to the costs of the action as a whole.
However, in relation to interlocutory applications, that principle should be an
option (which would often in practice be adopted) but should not be the
prescribed "usual order." Costs orders aimed at deterring unreasonable
interlocutory conduct after commencement of the proceedings should be given
at least equal prominence in practice, with the court being directed to have
regard to the underlying objectives mentioned in relation to Recommendation 2.
These powers should not apply to pre-action conduct.
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