Report comment

The ability to penalise any party for wrongful conduct is already there.
The judge in this case chose to reject counsel's arguments to award indemnity costs. He's not happy but he had his chance in court- so if he thinks the judge is wrong, how about appealing rather than moaning to the Gazette?
Cases that were rightfully and reasonably pleaded fail all of the time- that does not and should not mean an automatic penalty.
In this case, the judge saw all of the evidence and found that the Defendant's conduct was not such that it warranted a costs penalty.
The issue is conduct. If someone is found to be FD, they deserve a costs penalty- they have effectively been found to be a fraudster. If a defendant decides to plead fraud/ FD with no basis for doing so, then they probably deserve a costs penalty too and would likely get one. The solicitor/ barrister could also be in breach of their professional standards of conduct.
The ability to award the costs penalty in the latter case is already there. If any party makes an unreasonable pleading then they risk costs, simple.
Take this away- extremely regularly in fraudulent claims, the judge finds it easier to find that the claimant has 'not proven his case' rather than call him a fraudster. The judge dismisses the claim. This happens all of the time. So in this scenario, under this 'proposal' the claimant would recover costs against the defendant because it pleaded fundamental dishonesty.