The powers in the section together with the power to make orders for costs under Order 62 of the Rules of the Supreme Court included the power to make a pre-emptive order for costs.
Lord Donaldson MR said: ‘In these circumstances the judge decided to make a wholly novel order. In its detail it is of some complexity, but for present purposes it is only necessary to summarise its general effect. This was that, as from 8 June 1987, where particular plaintiffs incurred costs either personally or through the legal aid fund in pursuing lead actions, or thereby became liable to pay costs to the defendants, every other plaintiff should contribute rateably on a per capita basis. Those who have practised in the Commercial Court, of which Hirst J. is one of the judges, will recognise the age old respectability of such an order, based as it clearly is upon the Rhodian Law, the Rolls of Oleron and the maritime law of general average. But antiquity, respectability and indeed fundamental fairness is one thing – the power to make such an order is quite another. And here we come to the nub of this appeal. Before coming to that issue I should add that the judge recognised that in the months that lie ahead before a settlement or a final hearing circumstances might change. Thus some of the plaintiffs might decide to abandon their claims, so that instead of each plaintiff having to contribute 66 pence for every andpound;1,000 of the costs of the lead plaintiffs (on the basis of 1,500 plaintiffs), the contribution might rise significantly. And other unforeseeable eventualities might arise making this order unfair or unduly burdensome. He therefore gave all the parties liberty to apply to vary the order if circumstances changed. Finally he rightly stressed that his order in no way fettered the discretion of the trial judge to make special orders as to costs between the plaintiffs or individual plaintiffs and the defendants or individual defendants. In essence what he was doing was providing for contribution as between plaintiffs in respect of costs incurred by them or liability for costs imposed upon them, subject always to retaining a right to vary that order if justice so required. He also recognised that some plaintiffs might not wish to accept even this very small percentage of what in total could be a very considerable liability and he therefore ordered that any plaintiff who wished to abandon his action could do so, each party bearing its own costs of that discontinuance if he did so before 8 June 1987.’
Judges:
Lord Donaldson MR
Citations:
[1987] 1 WLR 1136, [1987] 3 All ER 94
Statutes:
Jurisdiction:
England and Wales
Cited by:
Cited – A B and others v Leeds Teaching Hospitals NHS Trust QBD 9-May-2003
The claimants were involved in a group litigation with regard to the removal of organs without consent from deceased children. The defendant sought an order capping the costs which might be claimed.
Held: In GLO cases the desirability of . .
Cited – Afrika and others v Cape Plc and others; X Y Z and Others v Schering health Care Ltd; Sayers and Others v Merck, Smithkline Beecham plc MMR/MR vaccine litigation CA 21-Dec-2001
Claimants sought damages for personal injuries after immunisation with the MMR vaccine. . .
Cited – Tovey and Others v Ministry of Justice QBD 18-Feb-2011
The claimants, serving prisoners, sought damages saying that the refusal to allow them to vote was in infringement of their human rights. The large numbers of claims had been consolidated in London. The claimant sought to withdraw his claim.
Lists of cited by and citing cases may be incomplete.
Costs
Updated: 12 May 2022; Ref: scu.190134