Case No. FA-2022-000035

51.Even bearing in mind the warning to appellate courts to avoid “narrow textual analysis”, I do find that the judge erred in law as to the test to be applied when making a non-party costs order. At paragraph [12] of his judgment he recognised that non-costs orders were permissible and that the court should conduct a “trial” that was fair to all parties. He also set out a test for the exercise of his discretion which had three elements – such orders should only be made in exceptional circumstances; the key consideration was the conduct of the non-party; and not only should that be conduct that “can be criticised” but it should also have had an impact on the legal costs of the parties in the case. Accordingly, he did not direct himself that:i)A non-party costs order should only be made if it is just to do so in all the circumstances.ii)If the exceptional circumstances relied upon the justify making a non-costs order are the culpable conduct of the non-party, then the non-party should have been guilty of reprehensible behaviour or unreasonable conduct within the proceedings.As a result, as the remainder of his judgment demonstrates, the judge did not address whether the conduct of the Local Authority was reprehensible or unreasonable, only whether it could be criticised. He did not address whether, if the conduct was not reprehensible or unreasonable, it was otherwise exceptional. And he did not address the core legal test of whether it would be just in all the circumstances to make the order. I would not expect the judge to have set out the relevant authorities or the legal test in fine detail. Nevertheless, key elements of the test that should have been applied were absent. The test that the judge set himself and applied was wrong in law.