The High Court’s costs judgment in Mitchell Winehouse v Parry and another [2026] EWHC 1970 (KB) is a striking reminder of the how the costs consequences of litigation reflect how litigation has been conceived, pursued and presented. Following the complete dismissal of the claimant’s case after trial, Sarah Clarke KC, sitting as a Deputy Judge of the High Court, ordered the claimant to pay the defendants’ costs on the indemnity basis, with what appears to be an 80% interim payment on account order. Winehouse offers a useful comparison as Associated Newspapers seeks indemnity costs in Prince Harry’s litigation.
The decision is notable not because indemnity costs followed what the judge termed a “comprehensive” defeat, but because the Court also found a sustained course of conduct that took the proceedings well outside the norm. The case had become an expensive and damaging exercise in litigation by attrition. Even after judgment, the Court was regrettably confronted with an excessive volume of further material, whilst the parties fought over the costs – this is despite it being pretty clear on the face of it which way the costs order would go and on what basis.
The indemnity costs threshold
As we know, an indemnity costs order is not a punishment for losing. The question is whether the conduct of the paying party, or some feature of the case, takes the litigation outside the ordinary run. The Court described the relevant conduct as unreasonable to a high degree and concluded that it permeated the proceedings.
The jurisdiction is engaged where the court can identify something materially beyond the ordinary incidents of adversarial litigation:
- there will be clearer cut cases, for example, where litigants have deliberately deleted relevant evidence during the proceedings, maintained a false account to obtain a forensic advantage, and procured evidence to manipulate the Court’s process and outcome; however,
- There will also be other cases, as in this case, for example, advancing grave allegations without a proper evidential foundation, pursuing an inherently weak claim relentlessly, using cost and pressure as weapons, or imposing disproportionate burdens on the opposing party and the court.
This week Associated Newspapers have argued they should recover their costs on the indemnity basis, even on a more limited basis that, inter alia, allegations were exceptionally grave and ultimately failed in their entirety.
Why the order was made
The Court’s conclusion rested on the cumulative effect of the claimant’s conduct, finding that no single feature should be viewed in isolation. Together, they demonstrated a litigation strategy that was oppressive, disproportionate and unreasonable to a high degree.
1. An inherently weak claim pursued to the end
The claimant lost ‘comprehensively’, on every material issue of fact and law. The defeat was total. The Court found that he had chosen to bring an inherently weak claim and had pursued it aggressively and relentlessly despite the evidential difficulties. The point was not only that the case failed, but that its weaknesses was compounded as the litigation progressed.
2. Serious allegations without clear evidence
The defendants were subjected to allegations of theft, deceit, dishonesty, concealment and conspiracy. Those allegations had obvious potential to damage their personal and professional reputations. The Court stressed that accusations of that gravity should not be advanced in civil proceedings without clear evidence.
3. Aggressive and oppressive correspondence
Within days of the first auction, the claimant instructed solicitors to bombard the defendants with aggressive letters and threats of proceedings. The Court regarded the correspondence as aggressive and unpleasant. Settlement proposals did not offer a genuine route to compromise: they required the defendants to concede the claim and make payments, while leaving the claimant free to continue making serious public accusations against them.
4. A disproportionate evidential exercise
The case concerned disputed ownership of personal items, but the litigation expanded far beyond what was reasonably required to determine that question. The Court was flooded with documents, evidence and submissions. Practitioners should take particular care not to confuse volume with forensic weight: a large evidential record, or drastically expanding the scope of the litigation, does not cure a weak case and may itself become relevant to costs where it is unnecessary or oppressive.
5. Unreliable evidence and comprehensive factual failure
The claimant and his witnesses were disbelieved on important matters. By contrast, the defendants and their witnesses were found to be reliable and truthful. The inconsistency of the claimant’s case, together with the contemporaneous evidence, undermined the central factual premises upon which the claims depended.
Even after judgment: procedural restraint still matters
The unfortunate conduct did not end with what was seemingly a clear merits judgment. For the consequential hearing, the Court received substantial further evidence and extensive written material after judgment. This is a sobering illustration of the same underlying problems that plague all cases; rarely will an unsuccessful party be able to bring themselves to save yet further costs and court time to resolve the consequentials.
This judgment makes clear that post-judgment hearings are not an opportunity to re-argue the merits or overwhelm the court with collateral material.
The payment on account
The defendants’ reported costs were approximately £715,361 for Ms Parry and £487,132 for Ms Gourlay. The Court ordered interim payments of £569,330 and £394,521 respectively, payable within 14 days, pending detailed assessment.
| Payment on account | |||
| Defendant | Reported costs | Payment ordered | Approximate percentage |
| Naomi Parry | £715,361 | £569,330 | 79.6% |
| Catriona Gourlay | £487,132 | £394,521 | 81.0% |
| Total | £1,202,493 | £963,851 | 80.2% |
The aggregate payment was therefore £963,851, approximately 80.2% of the defendants’ combined reported costs. That is a substantial payment, no doubt to reflect the ‘comprehensive result and conduct of the unsuccessful claimant.
Conclusion
Winehouse is a cautionary decision about the human and financial consequences of litigation. The underlying dispute arose in a sad context around the death of someone much loved by both parties. By the end, the Court was dealing not simply with an unsuccessful claim, but with litigation which had been massively expanded, and where tactics had become part of the problem.
That does not mean the result in Prince Harry’s case is predetermined. Indemnity costs are fact-sensitive. The comparison is nevertheless helpful: if the Court concludes that exceptionally grave allegations were pursued without a proper evidential foundation and failed in their entirety, Winehouse shows how those features may contribute to a finding that the litigation fell outside the norm. Whilst all 97 allegations made by Prince Harry were dismissed, comparing Winehouse with 46-day trial and £35million spent by ANG in Prince Harry’s case is, however, very difficult.
The message for practitioners is, though, clear. Advance only allegations that can properly be supported. Reassess a case when the evidence turns against you. A party who, instead seeks to win by attrition, but is comprehensively defeated, not believed, and fails to seek out compromise, may find that the costs order becomes the clearest judgment on how the case was conducted.
Ashley Fairbrother, Partner, Edmonds Marshall McMahon
Indemnity Costs in Litigation
