Tonstate Group Limited (in liquidation) & Ors v Gil Wojakowski & Anor

A party should not be joined to costs proceedings merely because it has adopted a position which is arguable, rather than plainly wrong. A former solicitor may be unable to make concessions or advance arguments binding on a former client after authority to act has ended. Where joinder serves no useful purpose because the solicitor cannot affect the client’s position, the solicitor is entitled to resist the application and recover the reasonable costs incurred. The court may reduce the amount claimed to reflect proportionality, unnecessary evidence, duplication and the limited nature of the hearing.

Fieldfisher LLP had acted for Gil Wojakowski in an application for Bankers Trust relief. After the hearing, Mr Wojakowski served a Notice of Change stating that Fieldfisher had ceased to act and giving an address for service in Israel.

The claimants then applied for a declaration that an order had been validly served on Mr Wojakowski through Fieldfisher, joining Fieldfisher as a respondent and initially seeking costs against it. The service issue was adjourned because the court had insufficient time to determine whether Mr Wojakowski remained a party required to maintain a United Kingdom address for service. Fieldfisher sought recovery of the costs incurred in defending its joinder.

1. Costs order. Fieldfisher was entitled to an order for its costs. The premise for joining it—that its position was plainly wrong and misleading—was not established.
2. The question whether service through Fieldfisher was effective was arguable. The obligation to maintain a United Kingdom address for service depended on whether Mr Wojakowski remained a party to the proceedings under Civil Procedure Rules 1998, rule 6.23(1). It was therefore not unreasonable for Fieldfisher to state its initial view to the court, and it was inappropriate to require it to accept that its position was plainly wrong.
3. After the Notice of Change, Fieldfisher no longer had authority to advance arguments or make concessions binding on Mr Wojakowski. Its views on the interpretation of rules 6.23(1) and 42.2(3) were of academic interest only. Joining Fieldfisher as a separate respondent therefore served no real utility.
4. Fieldfisher was justified in preparing to defend the application until the claimants withdrew their costs claim against it, and in seeking recovery of costs already incurred. However, the claimed sum was disproportionate. The court allowed for unnecessary length in the witness statement, possible duplication among three fee earners and the overall proportionality of the claim.
5. An order was made for recovery of £45,000 plus VAT if applicable.

First-instance decision. The judgment records an earlier application concerning Bankers Trust relief, reported at [2024] EWHC 975 (Ch), but this was not an appeal.