A High Court judge was wrong to make no order for costs after refusing an application for a non-party costs order against a solicitor and law firm, the Court of Appeal has decided.
Lord Justice Arnold said the case of Deepchand and Anor v Sooben  EWCA Civ 1409 had an “extraordinary” factual background, involving a “bitter dispute” between two solicitors of Mauritian heritage.
Anbananden Sooben sued Eshan Badal, the editor of Mauritius Now, a small newspaper aimed at the Mauritian community in the UK, for libel after publishing an interview he conducted with Ramkarun Deepchand, in which he alleged that Mr Sooben had attempted to suborn or procure him to commit perjury to support Mr Sooben’s claim against his former law firm partner.
A later attempt to join the publisher of the newspaper and Mr Deepchand was dismissed because it was made well outside the limitation period.
Mr Badal was represented by Lambeth Solicitors, where Mr Deepchand was a trainee solicitor at the time. “Even more remarkably, Mr Deepchand worked on the case from time to time,” Arnold LJ recounted.
At trial in 2017, Mr Justice Nicklin awarded Mr Sooben £70,000 in damages, which were aggravated by Mr Badal maintaining but ultimately abandoning a justification defence.
Mr Sooben did not pursue Mr Badal for costs because of his limited means and instead applied for Mr Deepchand and Lambeth Solicitors to made jointly and severally liable for Mr Sooben’s costs, put at £50,000. He alleged that Mr Deepchand was a “real party” to the claim.
Nicklin J ultimately declined to determine the application because it would not be possible to do so proportionately – up to four people would have to give oral evidence and be cross-examined, which was not a summary procedure, but a trial, and the costs would be disproportionate to the sum in dispute.
He went on to make no order for costs on the basis that the outcome was “neutral”. He said: “On the one hand, I have accepted that the court will not hear [Mr Sooben’s] application, but on the other, neither have I determined that that application ought to be dismissed. My first conclusion relevant to the issue of costs is that there has been no winner.”
On appeal, Arnold LJ said the judge was wrong to say there was no winner – what he meant was that he was not in a position to decide who the winner was. But he was wrong on this too – Mr Sooben did not achieve what he sought and so in that sense he was “indisputably the unsuccessful party”.
The case law was clear that an application for a non-party costs order, and in particular an application for such an order against the opposing party’s lawyers, should only be made if it could be determined proportionately by means of a summary procedure, Arnold LJ said. “This supports, rather than undermines, the proposition that Mr Sooben should be responsible for the costs of making an abortive application.”
The court noted that Nicklin J had considered the grounds originally relied upon by Mr Sooben for the application to be “unpromising” and amounted in effect to a collateral attack on the decision not to permit the joinder of Mr Deepchand as a defendant. “As the judge said, that was not a proper use of the non-party costs jurisdiction.”
Arnold LJ ruled that Mr Deepchand’s conduct in working as a trainee solicitor on a case in which he had a personal interest and was a witness, prayed in aid by Mr Sooben’s counsel, was not a factor relied upon by the judge in support of his decision on costs.
“I consider that the judge was right not to do so. It did not bear on the question of who was successful on the application or on the costs incurred by the appellants in defending the application. As the judge observed in his substantive judgment, Mr Deepchand’s conduct in that regard was properly a matter for Mr Sooben to raise with Mr Deepchand’s regulator if he so desired.”
Arnold LJ, with Lord Justice Lewison concurring, allowed the appeal and ordered Mr Sooben to pay the appellants’ costs of the application, to be assessed summarily.
Joshua Monro (instructed by Lambeth Solicitors) for the appellants. Andrew Roy (instructed by MDL Solicitors) for the respondent.