In Barry & Anor v Barry [2025] EWHC 819 (KB), the High Court delivered the first judicial commentary on what constitutes “oppressive behaviour” in the misuse of cost management in litigation and crucially, how such conduct can affect cost management and cost recovery.
This is the first time we’ve seen the courts lay down practical guidance in this area marking a significant moment for litigators navigating cost budgeting in contentious or high-stakes disputes.
The case concerned an elderly couple (the Claimants) who sued their son (the Defendant) to recover substantial loans they had made to him. The family dispute was bitterly contested – the son defended the claim vigorously, raising numerous points and even amending his defence at the last minute. The parents ultimately won at trial, securing repayment of the loans. Because the Claimants had made reasonable Part 36 settlement offers that the Defendant failed to beat at trial, the court had to consider the cost consequences (including additional Part 36 penalties) in their favour.
After judgment, a separate hearing addressed several costs issues: the Claimants’ application to vary their costs budget (to increase it) due to extra work caused by the Defendant’s conduct; the impact of the Claimants beating their Part 36 offers (entitling them to additional sums and possibly indemnity costs); the principle and basis of costs (which the parties agreed would be on an indemnity basis, given the Part 36 outcome); and an application for a payment on account of costs.
It was during this costs hearing that the High Court provided the first judicial commentary on what amounts to “oppressive behaviour” in litigation – a concept relevant to cost management when one party’s tactics drive up the other side’s costs. This guidance is significant for solicitors managing litigation budgets and strategy.
The provision of “oppressive behaviour” stems from Practice Direction 3D paragraph 13, which allows a party to apply to the court if an opponent is behaving “oppressively” by intentionally causing them to incur disproportionate costs. In full, PD3D para. 13 states:
“Any party may apply to the court if it considers that another party is behaving oppressively in seeking to cause the applicant to spend money disproportionately on costs and the court will grant such relief as may be appropriate.”
Up until the case in question there has been no reported case, however, there is limited commentary and guidance in the White Book.
The Court confirmed that the threshold for oppression if “fairly” high. Crucially, the Judge focused on the words “seeking to cause” in the PD such wording implying intentional conduct. In other words, to be “oppressive,” a party’s behaviour must involve a conscious attempt to drive up the other side’s spending on the case.
Ultimately, Mr Justice Dexter Dias, at para. 19, held no oppressive behaviour was proven on the facts:
“I cannot find oppressive behaviour on the interpretation of the test as I hold it to be. I find no causative intent.”
In a similar vein, another aspect of the dispute – a flurry of urgent exchanges over the parents’ health – was “a long way from oppressive behaviour with the necessary causation intent.”
The High Court’s ruling in Barry provides valuable clarification: oppressive behaviour in litigation will not be tolerated — but it is narrowly and strictly defined. To qualify, there must be a deliberate intent to cause the other party to incur disproportionate costs. Simply litigating forcefully, or even unreasonably, is not enough unless the conduct crosses the line into intentional cost inflation. For legal practitioners, the message is to litigate efficiently and ethically — and to be vigilant if an opponent strays into truly oppressive territory. With this new guidance, courts have another tool to enforce proportionality and fairness in costs.
MRN Solicitors is here to help you navigate these developments, ensuring that you manage costs effectively and remain on the right side of both the rules and the court’s expectations.