Orton v Barclays Bank UK PLC [2026] EWCA Civ 1025 is a Court of Appeal decision that firmly reinforces the costs-neutral principles underpinning the small claims track, and clarifies just how narrowly the “unreasonable behaviour” costs exception under CPR 27.14(2)(g) should be applied. 

Background to the Case 

The claimant, Steven Orton, brought a mis-selling claim against Barclays Bank for £2,750 plus interest, allocated to the small claims track. Following the collapse of his original solicitors, his new firm made a series of settlement offers for decreasing sums, while Barclays’s solicitors warned that cost consequences would follow unless the claim was discontinued. Twelve days before trial, Mr Orton discontinued the claim, describing it as a commercial decision once he realised his own counsel’s fees would outstrip any likely recovery. A district judge in the County Court at Middlesbrough went on to award Barclays £2,132.88 in costs under CPR 27.14 (2)(g), a decision upheld on first appeal by a circuit judge. 

The Court of Appeal’s Reasoning 

Allowing Mr Orton’s second appeal, Lady Justice Cockerill, with whom Lady Justice Andrews and lord Justice Bean agreed, stressed that the small claims track is deliberately designed to be costs-neutral, and that the unreasonable behaviour exception must not be construed widely. She cautioned against drawing analogies from unreasonableness tests and in other costs contexts, observing that these may not be helpful given the small claims track’s distinctive purpose, and that the judges exercising this discretion should bear in mind the undesirability of deterring parties from using the track at all. 

On the facts, the Court of Appeal found that Barclays’ solicitors’ correspondence had been wrongly treated as a genuine settlement offer, when in reality the bank had not moved its position at all. Had the original decision stood, the court warned, well-resourced defendants could effectively write their way out of the small claims track’s protections by asserting in correspondence that a claim was commercially inviable to fight, and treating anything short of early discontinuance as unreasonable. That approach, the court said, would blow the scheme of the small claims track apart. 

What This Means for Practitioners 

For solicitors and costs practitioners handling small claims work, Orton v Barclays Bank clearly signals that CPR 27.14(2)(g) remains a narrow gateway, not a general costs-shifting tool. Correspondence asserting that continued litigation is commercially disproportionate, without a genuine, moving settlement offer behind it, is unlikely to found a successful unreasonable behaviour costs application.  

Equally, a claimant’s decision to discontinue in the face of mounting own-side costs should not, without more, be treated as unreasonable conduct simply because it followed firm correspondence from the other side. 

Speak to Greener Costs Today 

If you need advice on a small claims costs application, or support with CPR 27.14 more generally, contact Greener Costs’ costs lawyers and costs draftsmen on 01204 263047 or info@greenercosts.co.uk.  

FAQs 

Can costs be awarded in the small claims track?  

Generally, no, reflecting the track’s costs-neutral design. CPR 27.14(2)(g) provides a narrow exception where a party has behaved unreasonably, but Orton v Barclays Bank confirms this must be construed strictly. 

Does discontinuing a small claim count as unreasonable behaviour?  

Not automatically. The Court of Appeal held that discontinuing in response to firm correspondence, without a genuine settlement offer being made, should not routinely be treated as unreasonable conduct under CPR 27.14(2)(g).