Case No. FA-2022-000035

34.Cobb J reviewed the principles applicable on an application for a non-party costs order against a Local Authority in HB v PB, OB and LB of Croydon [2013] EWHC 1956 (Fam). Cobb J noted the wide discretion afforded by s. 51(3) of the Senior Courts Act 1981 and that Rule 28.1 of the FPR 2010 imports aspects of the CPR to costs in family proceedings. Those include CPR r. 46.2 (above). He then noted the paucity of authority on how the court should exercise its wide discretion in family cases to make orders against non-parties (other than lawyers) but found assistance from the authorities of Symphony Group Plc v Hodgson [1993] 4 All ER 143, CA and Globe Equities Ltd v Globe Legal Services Ltd [1999] BLR 232. 35.In Symphony Group Plc Balcombe LJ, with whom Staughton and Waite LJJ agreed, set out guidance on non-party costs orders. The guidance at pages 192H -194D included,“(1) An order for the payment of costs by a non-party will always be exceptional … The judge should treat any application for such an order with considerable caution.…(4)An application for payment of costs by a non-party should normally be determined by the trial judge.(5)The fact that the trial judge may in the course of his judgment in the action have expressed views on the conduct of the non-party constitutes neither bias nor the appearance of bias.…(9) The Judge should be alert to the possibility that an application against a non-party is motivated by resentment of an inability to obtain an effective order for costs against a legally aided litigant…”36.In Globe Equities Ltd, Morritt LJ warned against elevating a requirement that the circumstances are “exceptional” into a precondition to the exercise of the power,“Ultimately the test is whether in all the circumstances it is just to exercise the power conferred by subsections (1) and (4) of the Supreme Court Act 1981 [as it was then called] to make a non-party pay the costs of the proceedings. Plainly in the ordinary run of cases where the party is pursuing or defending the claim for his own benefit through solicitors acting as such there is not usually any justification for making someone else pay the costs. But there will be cases where either or both these two features are absent. In such cases it will be a matter for judgment and the exercise by the judge of his discretion to decide whether the circumstance relied on are such as to make it just to order some non-party to pay the costs. Thus, as it seems to me, the exceptional case is one to be recognised by comparison with the ordinary run of cases not defined in advance by reference to any further characteristic.”37.Symphony Group Plc v Hodgson (above) was considered in the more recent case of Deutsche Bank AG v Sebastian Holdings Inc & Anor [2016] EWCA Civ 23 when Moore-Bick LJ said at [17 and 18]“A number of points emerge from that case. First, we think it is clear that all three members of the court assumed that the procedure to be adopted for deciding whether a third party should bear all or part of the costs of the litigation should be summary in nature, in the sense that the judge would make an order based on the evidence given and the facts found at trial, together with his assessment of the behaviour of those involved in the proceedings. Second, in order to justify the adoption of a summary procedure the third party must have had a close connection of some kind with the proceedings. Staughton and Balcombe L.JJ. both emphasised that the court should not make an order for costs against a third party unless it is just and fair that he should be bound by the evidence given at trial and the judge's findings of fact. Whether that is so in any given case will depend on the nature and degree of his connection with the proceedings.“Third, we do not think that the court was seeking to do more than provide an indication of the kind of factors that judges should take into account, as appropriate in the particular cases before them, when asked to make an order of this kind. Factors such as failing to join the person concerned as a party to the proceedings or failing to warn him that an application for costs may be made against him may in some cases weigh heavily against adopting a summary procedure, but each case has to be considered on its own merits in order to ascertain whether the third party will suffer an injustice if he is held bound by the evidence and findings at the trial. Decisions made on applications of this kind since Symphony v Hodgson, to many of which we were referred, only serve to illustrate the wide range of circumstances in which orders for costs have been sought and made against third parties.”38.I also have regard to Dymocks Franchise Systems (NSW) Pty Ltd v Todd and ors (No. 2)(New Zealand) [2004] UKPC 39 in which the Board assumed that the non party had to have caused the costs to be incurred - see [18] to [20].