QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
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JOHN THOMSON |
Claimant |
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- and - |
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BERKHAMSTED COLLEGIATE SCHOOL |
Defendant |
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- and - |
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IAN THOMSON GRACINDA THOMSON |
Non-Parties joined into the action pursuant to CPR 48.2 for the purposes of costs |
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Gordon Wignall (instructed by Irwin Mitchell) for the Non-Parties
Hearing dates: 21st September 2009
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Crown Copyright ©
The Hon Mr. Justice Blake :
Introduction
The jurisdiction to make ancillary orders in cost proceedings
The Principles on Third party costs awards.
i) The order for payment of costs by a non-party would always be exceptional and any application should be treated with considerable caution.ii) The application should normally be determined by the trial judge who could give effect to any views he had expressed as to the conduct of the non-party without constituting bias or the appearance of bias.
iii) The mere fact that someone has funded proceedings would generally be insufficient to support an application that they pay the costs of the successful party. Pure funders, as described at the case of Hamilton v Al-Fayed No. 2 [2002] EWCA Civ 665 reported [2003] QB 117 at [40], will not normally have the discretion exercised against them. That definition of "pure funders" means those with no personal interest in the litigation, who do not stand to benefit from it, are not funding it as a matter of business and in no way seek to control its course.
iv) It is relevant but not decisive that the defendant has warned the non-party of the intention to seek costs or that the non-party's funding has caused the defendant to incur the costs it would not otherwise have had to incur;
v) The conduct of the non-party in the course of the litigation and other than as a pure witness of material fact is of relevance and potential weight.
vi) Most of the decided cases on the exercise of the court's discretion under section 51 concerned commercial funders or corporate bodies closely associated with the party who incurred the costs liability which they were unable to satisfy. In the family context, the courts have been reluctant to impose third party costs orders against those family or friends who in the interests of access to justice assist a party to come to court for philanthropic and disinterested reasons.
vii) In determining these applications the court must exercise its case management powers to ensure that the application does not turn into satellite litigation that results in prolonged, complex and over-extended arguments about costs about costs. For that reason the inherent strength of the application is always a relevant factor.
Relevant considerations in the present application
i) The strength of the application as it now appears unassisted by disclosure;ii) The potential value to the fair determination of the application of the documents of which the claimant seeks disclosure and whether they are likely to elucidate considerations highly probative of the exercise of the court's discretion, or threaten to drag the application into a side alley of satellite litigation with diminishing returns for the overall issue;
iii) Whether on a summary assessment it is obvious that the documents for which disclosure is sought will be the subject of proper legal professional privilege;
iv) Whether the likely effect of any order the court might be minded to make will be proportionate and just in all the circumstances.
Strength
Relevance of the disclosure to the issues in the application
Likelihood of privilege existing in respect of this material
Justice and proportionality
"I will have to politely decline as I have no idea what that would do to my costs as I do not understand the legal obligations."
It appears that at the time of this letter John had dispensed with the services of Linder Myers who had come off the record in July 2009. That is unfortunate as the defendant's application makes it plain that any costs incurred by John or his solicitors in listing documents that the solicitors must have or have had in their possession of the class corresponding to paragraph 1 of the court's order would be paid for by the successful party in this application, and would not fall on John or Linder Myers. If the defendant's application does not succeed then the only person liable to pay their costs is John himself personally. If John makes a claim to legal professional privilege in respect of the communications by his parents with his solicitors that are not covered by legal professional privilege as the court infers a number of such documents may not be, he will have raised a false issue contributing to further costs in the resolution of this matter.
Conclusions