Orders against non-parties

Tecof International Ltd v Town Castle Ltd and others [2013] Lexis Citation 16, [2013] All ER (D) 215 (Feb); NLJ 1 March

Section 51 of the Senior Courts Act 1981 confers a discretion not confined by specific limitations. Although costs orders against non-parties are to be regarded as “exceptional”, exceptional in that context means no more than outside the ordinary run of cases where parties pursued or defended claims for their own benefit and at their own expense. The ultimate question in any such “exceptional” case is whether in all the circumstances it was just to make the order. Where a non-party director could be described as the “real party”, seeking his own benefit, controlling and/or funding the litigation, then even where he had acted in good faith or without any impropriety, justice might well demand that he be liable in costs on a fact-sensitive and objective assessment of the circumstances.