Dunfermline Building Society v Ghana Commercial Finance Ltd

An order requiring a non-party to pay costs is exceptional and must be approached with caution. In this context, exceptional means outside the ordinary run of cases; it does not require circumstances that are unique or unprecedented. The court has a discretion under Senior Courts Act, section 51, guided by the principles in Symphony Group and CPR 46.2(1). Relevant considerations include the non-party’s real involvement in the litigation, control of the proceedings, knowledge of the likely consequences, and whether the conduct caused costs which cannot otherwise be recovered. Where there is no effective distinction between the non-party and the unsuccessful companies, and the non-party irresponsibly caused hopeless proceedings to be pursued, a personal costs order may be just.

The claimant applied for an order that Mr Gopee personally pay the costs of an earlier application brought by Ghana Commercial Finance Ltd and Pangold Estate Ltd. The earlier application had been considered procedurally improper and wholly without merit. Mr Gopee represented the defendant companies and was their sole director or closely connected with them. He argued that the companies were distinct from him and that he should not be criticised for the proceedings being heard in the court concerned. The issue was whether the circumstances justified an exceptional non-party costs order.

1. Application granted. Mr Gopee was ordered personally to pay the claimant’s costs of the earlier application.
2. The jurisdiction arose under section 51 of the Senior Courts Act. The court possessed a discretion. The guidelines identified in Symphony Group and set out in CPR 46.2(1) were guidelines rather than rules.
3. The exceptional nature of a non-party costs order required caution. However, as explained by Cooke J in Deutsche Bank, exceptional meant no more than outside the ordinary run of cases.
4. Mr Gopee could not be criticised merely because the proceedings came before the court through orders made by the court rather than through his choice. That point did not resolve the costs application.
5. The decisive circumstances were that the underlying application was hopeless; Mr Gopee was an experienced litigant who understood the procedural position and the likely outcome; he controlled and conducted the companies’ litigation; the companies were unlikely to pay the claimant’s costs; and there was no effective distinction between their interests and his own.
6. Mr Gopee had irresponsibly caused the companies to defend proceedings, leaving the claimant with irrecoverable costs. In those circumstances, making him personally liable was just.