Darren Fernie v Burton Waters Management Ltd & Anor

The threshold for joining a person as a non-party for potential costs purposes is low. Where sufficient material supports the contention that the person controlled or was the real party behind the litigation, the court may join that person and give directions so the issue can be determined fairly. Joinder does not itself impose costs liability. The person must have a full opportunity to contest any subsequent third-party costs application.

Where the judge determining that application has previously made adverse findings concerning the proposed costs payer without hearing them, there may be an appearance that justice is not being seen to be done. The judge should consider whether the matter has been predetermined or whether another judge should hear it.

Joshua Fernie brought negligence, data-protection, privacy and related claims against Burton Waters Management Ltd and Banks Long & Co. His father, Darren Fernie, was alleged to have been instrumental in the litigation. The County Court struck out Joshua Fernie’s claim and ordered costs. It also joined Darren Fernie as a third party for costs purposes, enabling a possible future non-party costs order.

Mr Darren Fernie sought permission to appeal. Permission was refused on the papers by Mr Justice Eyre, save that the third ground narrowly avoided certification as totally without merit. On renewal, the central issue was whether the threshold for joinder had been met and whether the future costs application could fairly be heard by the same judge.

1. Renewed application dismissed. Mr Darren Fernie had no sufficient locus to appeal orders made solely in relation to his son. The renewed application proceeded only on the challenge to his joinder as a third party for costs purposes.
2. The threshold for such joinder was low. The court was entitled to join a person where sufficient material had been advanced to support the contention that the claimant was a cipher or nominee and that the proposed third party had controlled the litigation. The joinder and accompanying directions served to give that person an opportunity to respond and to enable a fair determination of whether a third-party costs order should be made.
3. Joinder did not make Mr Fernie liable for costs. The question whether a non-party costs order should ultimately be made remained undecided. Accordingly, there was no proper basis for an appeal against the procedural step of joinder.
4. Nevertheless, the judge expressed concern about the appearance of justice not being seen to be done if the future costs application were heard by the same judge who had struck out Joshua Fernie’s claim after considering adverse allegations concerning Darren Fernie, when Darren Fernie had not been heard on those matters. The judge should take care to ensure that the issue had not been predetermined. If there were a real risk that it might appear so, consideration should be given to having the application tried by another judge.

• High Court: On 20 February 2023, Mr Justice Eyre refused permission to appeal on the papers, granting any necessary extension of time. He concluded that the grounds concerning orders made against Joshua Fernie had no prospect of success and that the challenge to Darren Fernie’s joinder had no prospect of success, although it narrowly avoided certification as totally without merit.
• High Court: The renewed application for permission to appeal was dismissed by Mr Justice Martin Spencer.