Q&As

Does the court in England have power to order that the solicitor for one party (party A) pay the costs of the other party (party B) if the solicitor for party B has not properly considered if its client can pay the costs?

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Produced in partnership with Alex Bagnall of Total Legal Solutions
Published on LexisPSL on 21/04/2016

The following Dispute Resolution Q&A produced in partnership with Alex Bagnall of Total Legal Solutions provides comprehensive and up to date legal information covering:

  • Does the court in England have power to order that the solicitor for one party (party A) pay the costs of the other party (party B) if the solicitor for party B has not properly considered if its client can pay the costs?
  • Wasted costs
  • NPCOs against solicitors
  • Summary of the principles of NPCOs against solicitors

Does the court in England have power to order that the solicitor for one party (party A) pay the costs of the other party (party B) if the solicitor for party B has not properly considered if its client can pay the costs?

There are two issues to consider:

  1. wasted costs

  2. non party costs orders (NPCO)

Wasted costs

Most solicitors will be aware of the Courts’ powers in relation to wasted costs: where a legal representative has acted improperly, unreasonably or negligently and this conduct has caused a party to incur costs, the Court has the power to order the legal representative to pay those wasted costs. See generally, Practice Note: Wasted costs orders.

NPCOs against solicitors

In principle, section 51 of Senior Court Act 1981 (SCA 1981) empowers the Court to order anyone—whether they are a party to a claim or not—to pay the costs of litigation. However, the authorities which deal with NPCOs repeatedly describe them as 'exceptional'. In practice, this power is used sparingly.

The Privy Council Dymocks Franchise Systems (NSW) Pty Ltd v Todd confirmed that NPCOs are generally made only where the non-party not merely funds the proceedings but substantially controls or is to benefit from them. An NPCO should generally not be made against a 'pure funder' (ie those

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