Powerhouse Retail Ltd. & Ors v Seeboard Retail Plc & Ors

Costs are ordinarily recoverable only by parties, although an interested non-party may receive costs in appropriate circumstances. Where the non-party’s submissions substantially duplicate those of a well-represented party on a discrete issue, the court may refuse a separate costs award. Even if the interested participant had been a party, the unsuccessful party should not ordinarily bear two sets of costs where single representation could have been arranged. The Court of Appeal may also refuse leave to appeal to the House of Lords where the case is not sufficiently important to justify leave in that court.

This was an appeal from the Employment Appeal Tribunal before His Honour Judge McMullen QC. The appellants had succeeded on the relevant legal issue, and the respondents accepted that they should receive their costs. The Secretary of State for Education and Skills, who had intervened as an interested party after ceasing to be a party to part of the underlying Preston litigation, sought his costs. The respondents sought leave to appeal to the House of Lords. The central issues were whether the Secretary of State should receive costs as a non-party, whether two sets of costs should be ordered where the submissions substantially overlapped, and whether leave should be granted.

Costs. Lord Justice Pill held that the general rule is that only parties are entitled to costs, although the court may award costs to an interested party in appropriate circumstances.

1. The Secretary of State was not entitled to costs. The appellants were well represented throughout, the issue before the court was specific and discrete, and the submissions advanced for the appellants and the Secretary of State were substantially the same, although differently emphasised.
2. The court also considered that, even if the Secretary of State had been a party, the respondents should not be required to pay two sets of costs. The appellants and the Secretary of State could have arranged single representation. They were not obliged to do so, but the duplication made a second costs order unjust. The court had regard to the factors mentioned in the Bolton decision and refused the application.

Leave to appeal. The respondents’ application for leave to appeal to the House of Lords was refused. Although the issue was important and the decision had general application, the Court of Appeal considered that this was not a case of sufficient importance to justify granting leave in that court. Whether leave should be given was left to the House of Lords.

The appellants’ entitlement to their costs against the respondents was accepted. The operative orders were refusal of the interested party’s costs application and refusal of the application for leave to appeal.

• Court of Appeal (Civil Division): On appeal from the Employment Appeal Tribunal, the court refused the Secretary of State’s costs application and the respondents’ application for leave to appeal. The judgment records that the appellants were successful, but does not state the formal merits disposition.
• Employment Appeal Tribunal: Judgment of His Honour Judge McMullen QC; no citation or substantive outcome is stated in the supplied judgment.