Kindertons Limited v Georgina Murtagh & Anor
[2024] EWHC 471 (KB)
The Scout Association v Bolt Burdon Kemp
17 October 2023
[2023] EWHC 2575 (KB)
High Court
A scout group sued a law firm (BBK) for costs. BBK tried to get more money than offered, but lost. The judge said BBK wasn't to blame and didn't have to pay because they were just doing their job as lawyers.
Key Facts
- •The Scout Association (Appellant) appeals a Costs Judge's refusal to make a non-party costs order (NPCO) against Bolt Burdon Kemp (BBK) under section 51(3) of the Senior Courts Act 1981.
- •A claimant (PME) sued the Appellant, benefiting from Qualified One-Way Costs Shifting (QOCS).
- •The claim settled for £29,500 plus costs; BBK rejected a £22,500 costs offer.
- •BBK, using the claimant's name, pursued higher costs, unsuccessfully.
- •The Appellant sought an NPCO against BBK, arguing BBK was the 'real party' in interest.
- •BBK acted under a 'capped CFA' limiting the claimant's liability to 15% of damages.
- •The Costs Judge refused the NPCO; the Appellant appeals.
Legal Principles
Court's discretion over costs.
Section 51(1), (3) Senior Courts Act 1981
Non-party costs orders are exceptional, requiring justice in the circumstances.
Dymocks Franchise Systems (NSW) Pty Ltd v Todd [2004] 1 WLR 2807 (PC)
Solicitors acting solely as solicitors are generally protected from NPCOs unless acting outside their role.
Tolstoy-Miloslavsky v Aldington [1996] 1 WLR 736; Hodgson v Imperial Tobacco Ltd [1998] 1 WLR 1056
A solicitor can be a 'real party' even when ostensibly acting for a client, especially if the solicitor substantially controls and benefits from the proceedings.
Myatt v National Coal Board (No 2) [2007] 1 WLR 1559
Solicitors acting under a lawful CFA, merely seeking to recover costs, do not typically attract NPCOs.
Flatman v Germany [2013] 1 WLR 2676
QOCS protects claimants from paying defendants' costs except up to the amount of damages and interest.
CPR 44.14(1)
Appeals against exercises of discretion are limited to misdirections in law, procedural unfairness, consideration of irrelevant matters, failure to consider relevant matters, or plainly wrong decisions.
Azan v University Hospital Birmingham NHS Foundation Trust [2020] EWHC 3384 (QB)
Outcomes
Appeal dismissed.
The Court found BBK did not act outside its role as solicitor; the pursuit of costs was an incident of the lawful CFA arrangement. The judge's decision was not plainly wrong.