Arrow Nominees Inc & Ors v Blackledge & Ors

Where a non-party solicitor is required to undertake further enquiries to comply with a disclosure order, the applicants seeking that assistance should ordinarily bear the reasonable costs of the additional work. This reflects Norwich Pharmacal principles. The court may also refuse to impose costs for work already undertaken where the parties had effectively agreed that those costs should lie where they fell. Proper notice and sensible attempts to agree the scope and funding of further enquiries are expected before restoration of the matter.

The application arose from an earlier Court of Appeal order requiring Berg & Co, who were not parties to the litigation, to provide information. Berg & Co had searched their accounts and disclosed movements on their client account. The appellants later sought a further search through 25 files. The issue was whether that further work was required and, if so, who should pay for it, together with the costs of the application.

1. Further enquiries. Berg & Co were required, in accordance with their undertaking, to conduct a further search through their files so as to give further compliance with the earlier order.
2. Costs of the further search. Berg & Co were not parties to the litigation. Applying Norwich Pharmacal principles, the appellants seeking their assistance were required to pay the costs of searching the 25 files. If the issue had been raised earlier, the court would have ordered provision for those costs.
3. Costs of earlier disclosure. The earlier search of Berg & Co’s accounts had been undertaken pursuant to the parties’ agreement as to what was required at that stage, with the costs effectively parked. Those costs should lie where they fell, and no order was made for them.
4. Costs of the application. The appellants had failed to give proper notice or make a reasonable attempt to reach the obvious agreement before restoring the matter. They were therefore ordered to pay Berg & Co’s costs of the application, assessed at £7,000. Counsel were to settle the form of order.

• Court of Appeal (Civil Division): On an application arising from an earlier order concerning disclosure by Berg & Co, the court directed further compliance and made the consequential costs orders.
• High Court of Justice, Chancery Division, Manchester District Registry: The matter had originated in the High Court; no separate citation or substantive decision is stated in the judgment.