CR Construction (UK) Limited v Barclays Bank PLC
| Judge | His Honour Judge Stephen Davies |
| Judgment | 4 February 2026 |
| Jurisdiction | England & Wales |
| Claimant | CR Construction (UK) Limited |
| Defendant | Barclays Bank PLC |
Summary
This judgment dealt with the consequences of an earlier decision in which the contractor had failed to obtain an injunction to restrain payment under a performance bond. Three questions arose: whether the employer, who had intervened, should recover its costs, whether the contractor should pay the bank's costs on the indemnity basis, and whether the order should be stayed pending appeal.
The employer said it should recover its costs of intervening. The bank sought indemnity costs, pointing to a rejected offer. The contractor asked for a short stay so that it could apply to the Court of Appeal.
His Honour Judge Stephen Davies held the employer entitled in principle to its reasonable costs, but limited to the work its intervention properly required rather than full costs as a second defendant. He assessed both the bank's and the employer's costs at £75,000. He refused indemnity costs and refused a stay.
Background and facts
The contractor had applied for an injunction to restrain the bank from paying out under a bond. The employer, as beneficiary, intervened, and the substantive judgment, reported at [2026] EWHC 202 (TCC), refused the injunction on the proper construction of the bond and the applicable legal principles. By that stage the surety had already paid the bank under a counter-guarantee.
The matter returned for consequential orders. The employer's involvement had added evidence and argument alongside the bank's, and the parties disputed both the extent of the employer's costs recovery and the basis of the bank's costs. The contractor also sought to hold the position by asking for a stay.
The issue
The court had to decide three points: the employer's entitlement to costs as an intervening party and the proper basis for assessing them, whether the contractor's conduct justified indemnity rather than standard costs, and whether to stay the order refusing the injunction pending an application for permission to appeal.
The decision
On the first point, the judge applied the principles governing costs for interested and intervening parties, drawn from International Game Technology v The Gambling Commission [2023] EWHC 1961 (TCC) and Bolton MBC v Secretary of State for the Environment [1995] 1 WLR 1176. The employer was entitled in principle to recover, but could not simply assume full costs where much of its work duplicated the bank's:
"I am satisfied that in principle the employer is entitled to its reasonable costs of its involvement in these proceedings."His Honour Judge Stephen Davies, paragraph 14
Its recovery was limited to the reasonable costs of reading into the case, deciding how to respond, providing a proportionate response in evidence and submissions, and attending to address points on the building contract and underlying facts that the bank could not cover. Because the injunction, had it succeeded, would have hit the employer rather than the bank, the judge assessed the employer's costs at the same figure as the bank's, £75,000.
On the second point, the judge applied the test of whether the conduct or circumstances took the case out of the norm, from Excelsior Commercial and Industrial Holdings Ltd v Salisbury Hamer Aspden and Johnson [2002] EWCA Civ 879, and warned against judging conduct with hindsight, citing Williams v Jervis [2009] EWHC 1837 (QB). The contractor had failed to appreciate the difficulties with its claim but had not pursued a hopeless case unreasonably, and its negotiating stance was not intransigent:
"this is not an appropriate case for indemnity costs."His Honour Judge Stephen Davies, paragraph 29
He summarily assessed the bank's costs at £75,000 plus VAT on the standard basis. On the third point, he refused a stay. The only substantive order was the refusal of the injunction, so a stay would achieve nothing, and there was no obvious prejudice given that the bank was good for the money and the surety had already paid under the counter-guarantee.
Practical implications
An intervening party does not automatically recover full costs. A beneficiary or other party that intervenes to protect its interest may recover in principle, but the court will limit recovery where its work duplicates a defendant's, allowing only the costs its separate position genuinely required.
Who the order really hits can drive the costs outcome. The employer recovered at the same level as the bank partly because the injunction, if granted, would have struck the employer in the pocket. The party with the real commercial exposure may justify a fuller costs recovery than its formal role suggests.
Losing does not mean indemnity costs. Indemnity costs require something that takes the case out of the norm. A claimant who misjudges the strength of its case but does not pursue it unreasonably, and who negotiates in good faith, will usually pay only standard costs. Conduct is judged without hindsight.
A stay must actually achieve something. Where the only order is the refusal of an injunction, a stay cannot reinstate through the back door the relief refused at the front door. A party seeking a stay pending appeal must identify a real purpose and real prejudice, rather than a wish to preserve the position.
Practice points
- An intervening party is entitled in principle to reasonable costs, but recovery is limited where its work duplicates a defendant's; it will not be treated as a second defendant entitled to full costs.
- The party that the injunction would actually have hit may recover more fully than its formal role suggests; identify where the commercial exposure truly lies.
- Indemnity costs require conduct out of the norm; misjudging a claim, without unreasonable persistence or bad-faith negotiation, attracts only standard costs, assessed without hindsight.
- A stay of an order that merely refuses an injunction achieves nothing; a stay applicant must show a real purpose and real prejudice, not a back-door route to the refused relief.