Deepchand & Anor v Sooben

Where an application for a non-party costs order cannot be determined proportionately, the applicant is ordinarily the unsuccessful party if the order sought has not been obtained. The court can therefore determine costs without deciding the underlying merits. Such applications, particularly against opposing lawyers, should be suitable for summary determination. If not, they should not be made. The general rule in CPR 44.2(2)(a) is the starting point, subject to the court’s discretion. Conduct unrelated to success on the application or to costs incurred in resisting it will not ordinarily justify withholding costs.

The appeal arose from a failed application by Anbananden Sooben for a non-party costs order under CPR 46.2 against Ramkarun Deepchand and Lambeth Solicitors, who had acted for the defendant in an earlier libel action. Nicklin J declined to determine the application because doing so would require disproportionate fact-finding and made no order as to costs. The appellants argued that, having failed to obtain the order sought, Sooben was the unsuccessful party and should pay their costs. The central issue was whether the judge was unable to determine the successful party, or was instead able to identify the appellants as the winners despite declining to adjudicate the merits.

1. Appeal allowed. Arnold LJ, with whom Lewison LJ agreed, held that the judge’s decision meant that the merits could not be determined proportionately, rather than that the application had produced a draw. Sooben had not obtained the order sought, while the appellants had successfully resisted it.
2. An application for a non-party costs order, particularly against opposing lawyers, should be capable of determination by a summary and proportionate procedure. If it cannot be so determined, it should not be made. This supports ordering the applicant to pay the costs of an abortive application.
3. The case differed from a settlement case in which the court has no proper factual basis for identifying a winner. The grounds originally relied upon were also unpromising. The case against Deepchand was effectively a collateral attack on the refusal to join him as a defendant. The grounds against Lambeth Solicitors did not justify a non-party costs order, and extending credit to a client was not such a ground.
4. Allegations that Deepchand controlled the litigation or that Lambeth Solicitors had charged no fees were unsupported or contradicted. Deepchand’s conduct in working on a case in which he had a personal interest was irrelevant to success on the application and to the costs of defending it. The failure to disclose a letter did not justify withholding costs because Sooben knew, or should have known, that his evidence was deficient.
5. The starting point on re-exercising the discretion was the general rule in CPR 44.2(2)(a). Sooben was ordered to pay the appellants’ costs of the application. The Court of Appeal would summarily assess those costs following written submissions.

1. Court of Appeal (Civil Division): [2020] EWCA Civ 1409 allowed the appeal and ordered Sooben to pay the appellants’ costs of the non-party costs application, with summary assessment to follow written submissions.
2. High Court, Queen’s Bench Division, Media & Communications List: Nicklin J, [2019] EWHC 1893 (QB), declined to determine the non-party costs application proportionately and made no order as to costs.