Order Against Non-party

Robertson Research International Ltd v ABG Exploration BV & Others (QBD Patents Court The Lawyer 29 November)

After directions for trial had been given in a robustly defended action the defendant company gave notice that it was ceasing to trade, its solicitors came off the record and it consented to judgment for the entire sum claimed. By then it was an empty shell. The claimants joined as parties a director and the financial controller of the defendant company alleging that they had known there was no defence and seeking an order for costs against them. The defendants argued that in view of the strictures of the Court of Appeal in wasted costs matters that such applications will not be heard unless they can be dealt with summarily the present applications should be dismissed. The Master accepted these submissions but on appeal Laddie J held that unlike the wasted costs jurisdiction applications against non-parties were solely compensatory and it was irrelevant whether there was any impropriety on the part of those responsible. Although such orders would always be exceptional, it was not necessary that the applications had to be capable of being dealt with summarily. The matter could be dealt with appropriately by, for example, limiting it to principal issues, limiting or disposing with cross-examination and limiting the length of the hearing.