In the recent case of Dunfermline Building Society v Ghana Commercial Finance Ltd and others, the Mercantile Court has ordered a non-party to pay the costs of an earlier application (brought by the defendants) for the following reasons:
- The non-party, Mr Gopee, was “inextricably bound up” with the fortunes of the defendant companies. There was no effective distinction between him and the companies. (The Judge did not explain exactly why he said this, but according to the claimant’s submissions, Mr Gopee had represented the first and second defendants throughout, he was their sole director, and he and a Mauritius company were the shareholders in the first defendant.)
- He was a hugely experienced litigant in person in the sense that he actively represented the defendant companies and a considerable number of other companies with which he was closely connected. As such, he must have known from past experience that his prospects of success in bringing the defendants’ application were virtually non-existent.
- The defendant companies never had any intention of paying the claimant’s costs when they lost. Mr Gopee knew that the companies faced no real prejudice or risk (unless someone had the energy to apply to wind them up). Therefore, he irresponsibly caused them to defend the claim, and the claimant to incur irrecoverable costs as a result.
Although this decision is fact specific, it is an interesting example of the court making a non-party costs order against a non-lawyer representative and deciding that the circumstances here were sufficiently exceptional to make it appropriate to exercise its discretion under section 51 of the Senior Courts Act 1981.
Chris Harper is a partner and head of the dispute resolution team in Exeter. He specialises in commercial litigation and is named as a leader in his field by independent guides to the legal profession Legal 500 and Chambers. To contact Chris please call 01392 210700 or email drx@stephens-scown.co.uk.