Loson & Anor v Brett Stack & Anor

A non-party costs order may be made before the underlying costs have been assessed. The order determines liability in principle; the amount and proportionality of costs remain matters for detailed assessment. The exceptional nature of the jurisdiction does not prevent an order where the evidence shows that the non-party was the architect or driving force behind the litigation. Legal professional privilege does not itself provide a defence to such an order, although it may create difficulties in a wasted-costs application. Permission to appeal was refused where no arguable error of principle or other compelling reason was shown.

Ms Loson’s claim against a bailiff company and its employee, arising from the clamping and removal of her car following an unpaid parking fine, was dismissed after a two-day trial. The defendants then applied under Civil Procedure Rules rule 46.2 for Mr Emezie, who had been joined as a co-claimant, to pay their costs. The district judge found that he had been the architect and driving force behind the litigation and made a non-party costs order against him.

Kitchin LJ refused permission to appeal on the papers. On oral renewal, the issues included legal professional privilege, whether the costs order could precede detailed assessment, and proportionality. The central question was whether the proposed appeal had a real prospect of success or another compelling basis for being heard.

1. Disposition. Jackson LJ refused permission to appeal. The district judge had applied the correct principles and there was no realistic prospect that the Court of Appeal would reverse the order or find an error of principle.
2. Non-party costs order. An order under Civil Procedure Rules rule 46.2 is exceptional, but the evidence supported the finding that Mr Emezie was the architect and driving force behind the proceedings. He had issued and promoted the claims, participated actively as solicitor and husband, and had lost on the main issues.
3. Legal professional privilege. Even if privileged communications existed between Mr Emezie and his wife, privilege did not provide a defence to a non-party costs order based on his role in driving the litigation. That situation differed from a wasted-costs application, where privilege may create professional difficulties for the lawyer concerned.
4. Timing and assessment. There was no basis for postponing the rule 46.2 application until the defendants’ costs had been assessed. Mr Emezie could participate in the assessment and challenge individual items. Questions concerning proportionality and the amount recoverable belonged to the detailed assessment, rather than the prior decision on liability in principle.
5. The application was therefore refused. The substantial costs reflected the litigation’s expansion, its allocation to the multi-track and the two-day trial, and did not disclose an error in the district judge’s approach.

• Court of Appeal (Civil Division): Kitchin LJ refused permission to appeal on the papers. On oral renewal, Jackson LJ refused the application.
• Romford County Court and Family Court: District Judge Jackson dismissed Ms Loson’s claim and ordered her to pay costs. After Mr Emezie was joined, the judge ordered him to pay the defendants’ costs under rule 46.2 of the Civil Procedure Rules.