The claimant having obtained judgment in an action against the defendant company when it was solvent, and the case having become disproportionate through the dishonest actions of the owner of the defendant, the defendant company then being put into an insolvent liquidation, with inadequate explanations as to the destiny of its assets, obtained a third party costs order against the defendant’s owner, who now appealed.
Held: A non-party costs order should not be made where the relevant costs would have been incurred anyway without the involvement of the non-party.
Lewison J noted: ‘As with Balcombe LJ’s classification, these principles are guidance not rules. As Longmore LJ said in Petromec (ss 12) Lord Brown’s words are emphatically not a statute. The ultimate question is whether it is just to make the order. It is wrong to treat the reported cases as providing a comprehensive check list of factors which must be present in every case before the discretion can be exercised in a particular case. What may be sufficient to justify the exercise of the discretion in one case should not be treated as a necessary factor for the exercise of the discretion in a different case: Secretary of State for Trade and Industry v Aurum Marketing Ltd [2000] EWCA Civ 224, [2002] BCC 31 (Mummery LJ).’
Ward, Lloyd, LJJ, Lewison J
[2011] EWCA Civ 546, [2011] 4 Costs LR 666, [2012] 1 BCLC 14
Bailii
England and Wales
Cited by:
Cited – Goknur v Aytacli CA 13-Jul-2021
Third Party Costs – Director of Insolvent Company
(Organic Village) The Court considered the circumstances Limited in which a director and shareholder of an insolvent company may be personally liable for some or all of that company’s costs liabilities incurred in unsuccessful litigation, pursuant . .
These lists may be incomplete.
Updated: 16 July 2021; Ref: scu.439653