COST BITES 12: A DEFENDANT WHO IS NOT A PARTY TO AN APPEAL CAN STILL BE ORDERED TO PAY THE COSTS OF THAT APPEAL
In Turner & Ors v Thomas & Anor (Costs)  EWHC 1944 (Ch) Mr Justice Zacaroli considered the appropriate principles to be applied as to costs when a defendant was not a party to an appeal made by a co-defendant. The judge decided that the principles were akin to non-party costs orders. On the facts of this case it was appropriate to make an order for costs against the defendant who had not been party to the appeal.
“I consider the correct approach is to apply by analogy the principles derived from cases where costs orders are sought against non-parties.”
The claimants brought an action against a company and an individual. They succeeded at trial. The defendant company, but not the individual, appealed. That appeal was unsuccessful and an order was made for costs. The issue arose as to whether it was the appellant company that should be liable for the costs of appeal, or both defendants. The individual (Mr Thomas) arguing that as he took no part in the appeal he should not be responsible for any costs that appeal.
THE JUDGMENT ON THIS ISSUE
The judge held that, on the facts of this case, it was appropriate that Mr Thomas pay the costs.
I agree with Mr Thomas to this extent, that the fact that he was made a defendant to the action is not sufficient reason to make a costs order against him on this appeal. I consider the correct approach is to apply by analogy the principles derived from cases where costs orders are sought against non-parties. Applying those principles, and bearing in mind the points made on behalf of Mr Thomas: