Disclosure and non-party costs orders

The courts may, pursuant to section 51 of the Senior Courts Act 1981, make a costs order against non-parties to proceedings (NPCO). Whether an order should be made is clearly a matter in the discretion of the court and will turn on the particular facts of the case. Furthermore, where a power exists to grant a remedy, there is, inherent in that power, the power to make ancillary orders to make the remedy effective.

In the recent case of Topalsson GmbH v Rolls Royce Motor Cars Limited [2024] EWHC 297 (TCC), Mr Justice Constable considered the defendant’s application for funding information in support of its application for an NPCO. The defendant was successful at trial and was awarded 90% of its costs which remained unpaid. The claimant argued that payment of the defendant’s costs remained outstanding because its insurers had failed to indemnify it, and the claimant was pursuing its insurers through the German courts. The claimant argued that the defendant’s funding disclosure application should not be granted because: (i) it was premature; (ii) the NPCO was unlikely to succeed; and (iii) there were potentially ‘severe consequences’ for it in the German proceedings if it was required to comply with any order.

Principles

The breadth of available ancillary orders in the context of information sought in order to advance an NPCO was considered in Automotive Latch Systems Ltd v Honeywell International Inc [2008] EWHC 3442 (Comm). In that case, Flaux J granted the order on the basis that the court should not determine the application without more than the disclosure of the names of funders or that the applicant seeks to join funders, against whom it later transpired there was no basis to consider a non-party costs order.

In Thomson v Berkhamsted Collegiate School [2009] EWHC 2374 (QB), Blake J set out the following guiding principles:

• An NPCO would always be exceptional.
• The mere fact that someone has funded proceedings would generally be insufficient to support an application for an NPCO.
• On the issue of whether discourse is necessary, the court should consider: (i) the strength of the application as it appears unassisted by disclosure; (ii) the potential value of the documents to the fair determination of the application, and whether they are likely to elucidate considerations highly probative of the exercise of the court’s discretion, or potentially threaten satellite litigation; (iii) whether the documents will be subject to legal professional privilege; and (iv) whether any order made by the court will be proportionate and just in all the circumstances.

Decision

On the issue of prematurity, the judge did not regard the application to be premature because costs liability does not need to be finally determined for the court to make an NPCO (see Loson & Anr v Brett Stack & Anr [2016] EWCA Civ 610). The judge also found that the defendant’s application for an NPCO against the CEO of the claimant, Mr Topal, was not inherently weak or fanciful. However, it was not enough that Mr Topel was the CEO and sole shareholder of the claimant (see for example Goknur Gida Maddeleri Enerji Imalet Ithalat Ihracat Ticaret ve Sanayi As v Cengiz Aytacli [2021] EWCA Civ 1037). The judge found that Mr Topel retained control of the litigation in a manner that could be said to set him apart from the ordinary company director. Neither was the application fanciful to conclude that the claimant could not finance the proceedings by itself, and Mr Topal had confirmed the existence of external support. The judge also concluded that the information sought was likely to elucidate considerations highly probative of the exercise of the court’s discretion in due course. Furthermore, the judge held that there was nothing impossible about compliance with the order sought, and that compliance with the order would not expose the claimant to criminal and civil sanctions in the German proceedings.   

The decision is a helpful reminder of the principles which will govern an application for disclosure in support of an NPCO. In all cases, the court will, as Blake J explained in Thomson v Berkhamsted Collegiate School ‘consider the likely value of the documents sought… whether there are reasons that the documents cannot or should not be provided, proportionality and any other matters relevant to the exercise of its discretion and the overall justice of the order’.

Masood Ahmed is an associate professor of law at the University of Leicester and a member of the Law Society’s Dispute Resolution Committee. Lal Akhter is director of Docket Live and an unregistered barrister