Non-party costs orders: the “real party” to the litigation

Callum Reid-Hutchings has acted for the successful applicant in a non-party costs order application under s.51 of the Senior Courts Act 1981 and CPR 46.2 in the High Court.

Callum was first instructed over a year ago, when three overseas companies served statutory demands on the applicant amounting to over US$1 million. At the first hearing, Callum secured the set-aside of all three demands as an abuse of process, with indemnity costs awarded against the companies, and the joinder of the individual controlling those companies as a non-party for the purposes of costs. None of the costs were paid, the companies having no assets within the jurisdiction.

Callum was then instructed to pursue that individual for the costs personally. The Court held that he was the real party to the litigation, having controlled the companies and stood to benefit from the proceedings, and ordered him to pay both the original costs and the costs of the application.

The decision illustrates the continuing application of Dymocks, Goknur and Hilden Developments v Phillips Auctioneers: limited liability does not extend to risk-free litigation conducted from behind a corporate identity.

Callum was instructed by Daniel Tominey of Francis Wilks & Jones.