There have been a number of cases relating to non-party costs orders. The claimant’s application for such an order failed in  Paper Mache Tiger Ltd v Lee Mathews Workroom PTY Ltd [2023] EWHC 338 (Comm). John Kimbell KC, sitting as a High Court Judge, held that the case did not come close to the relevant criteria.



“The circumstances are therefore in my judgment far removed from the situation of a claimant being messed about and misled by dishonest or obstructive conduct.”


The claimant brought an action against Lee Matthews Workroom Pty Ltd a small specialist fashion company. It obtained judgment for £718.790 and £280,000 on account of costs.   The respondent, Ms Matthews, was the sole director of the company.  She had earlier sold the assets of the company to another company, which she also controlled.

Prior to issue the claimant had been told that the company had no assets. The claimant indicated that it would press ahead with the action in any event.  The company went into liquidation during the course of the action, which was initially defended by the company, and the claimant obtained a judgment.


The judge considered the legal principles relating to non-party costs order.

    1. I was referred to the summary of relevant principles contained in Goknur v Aytacli [2021] EWCA Civ 1037[2021] 4 WLR 101 (Goknur). In that case at [40], Lord Justice Coulson, with whom the rest of the Court agreed, summarised the legal principles which apply to NPCO applications as follows (with full references to the cases citation where they first appear):
“a) An order against a non-party is exceptional and it will only be made if it is just to do so in all the circumstances of the case (Gardiner v FX Music Limited (2000) WL 33116500 (27 March 2000, unreported), Dymocks Franchise Systems (NSW) Pty Limited v Todd and others [2004] UKPC 39[2004] WLR 2807Threlfall v ECD Insight Limited and Anr[2015] EWCA Civ 144[2014] 2 Costs LO 129).
b) The touchstone is whether, despite not being a party to the litigation, the director can fairly be described as “the real party to the litigation” (Dymocks, Goodwood Recoveries v Breen [2005] EWCA Civ 414, Threlfall).
c) In the case of an insolvent company involved in litigation which has resulted in a costs liability that the company cannot pay, a director of that company may be made the subject of such an order. Although such instances will necessarily be rare (Taylor v Pace Developments Ltd [1991] BCLC 406), s.51 orders may be made to avoid the injustice of an individual director hiding behind a corporate identity, so as to engage in risk-free litigation for his own purposes (North West Holdings Plc (In Liquidation (Costs) [2001] EWCA CIV 67). Such an order does not impinge on the principle of limited liability (Dymocks, Goodwood, Threlfall).
d) In order to assess whether the director was the real party to the litigation, the court may look to see if the director controlled or funded the company’s pursuit or defence of the litigation. But what will probably matter most in such a situation is whether it can be said that the individual director was seeking to benefit personally from the litigation. If the proceedings were pursued for the benefit of the company, then usually the company is the real party (Metalloy Supplies Ltd v MA (UK) Ltd [1997] 1 WLR 1613Metalloy). But if the company’s stance was dictated by the real or perceived benefit to the individual director (whether financial, reputational or otherwise), then it might be said that the director, not the company, was the “real party”, and could justly be made the subject of a s.51 order (North West HoldingsDymocksGoodwood).
e) In this way, matters such as the control and/or funding of the litigation, and particularly the alleged personal benefit to the director of so doing, are helpful indicia as to whether or not a s.51 order would be just. But they remain merely elements of the guidance given by the authorities, not a checklist that needs to be completed in every case (Systemcare (UK) Limited v Services Design Technology [2011] EWCA Civ 546).
f) If the litigation was pursued or maintained for the benefit of the company, then common sense dictates that a party seeking a non-party costs order against the director will need to show some other reason why it is just to make such an order. That will commonly be some form of impropriety or bad faith on the part of the director in connection with the litigation (Symphony Group plc v Hodgson [1994] QB 179, Gardiner, Goodwood, Threlfall).
g) Such impropriety or bad faith will need to be of a serious nature (Gardiner, Threlfall) and, I would suggest, would ordinarily have to be causatively linked to the applicant unnecessarily incurring costs in the litigation.”
    1. I was also referred to Asprey Capital Limited v Rediresi [2023] EWHC 28 (Comm). In that case, Patricia Robertson KC, sitting as a Deputy High Court Judge made the following ten additional points at [10] – [17], which I gratefully adopt:
a. The NPCO jurisdiction is a highly fact-specific jurisdiction;
b. There is now an abundance of authority on the absence of any need for abundant authority on the principles which should guide a judge as to whether to make a third party order for costs (per Moses LJ in Alan Phillips Associates Ltd v Terence Edward Dowling t/a The Joseph Dowling Partnership & Ors [2007] EWCA Civ 64, at [31].);
c. In the particular context where the order is sought to be made against the director or shareholder of an insolvent company, there must be some factor that makes it just to make the order, notwithstanding the principle of limited liability. The decided cases offer examples but are not exhaustive of the factors that might be relevant, or the ways in which these might combine in a given case to tip the balance.
d. The only immutable principle is that the discretion must be exercised justly – Deutsche Bank v Sebastian Holdings [2016] EWCA Civ 23 at [62];
e. Funding, by itself, may be consistent with the director pursuing the proceedings for the benefit of the company. Equally, however, the absence of funding will not preclude the making of an order if the proceedings were being run for the personal benefit of the director, rather than in the interests of the company. Impropriety in the conduct of the proceedings, where serious, may justify an order even where the element of personal benefit is lacking. However, it does not follow that some lesser degree of impropriety is irrelevant in a case where there are also other factors in favour of making an order. Ultimately, it is not a matter of operating a “checklist” but an exercise of a broad discretion. Something that would not be sufficient by itself may be the feather that tips the scale when it is viewed cumulatively with other features of the case.
f. Whilst the NCPO jurisdiction is a “summary jurisdiction”, it does not follow that it will only be exercised (a) where the Court can deal with the matter shortly and (b) without determining any disputed issues of fact.
g. Whereas the trial judge may be able to deal with a s51 application very swiftly, that may not be as true where the application has to be dealt with by a judge other than the trial judge. It does not follow, however, that the application must proceed as if it were a mini-trial. The Court can in principle limit the length of the hearing, limit (or indeed not permit) cross examination, limit the parties to the “big 5 points” and, where appropriate, decide the matter on the basis of witness statements alone, so as “to ensure that the application is dealt with as speedily and inexpensively as is consistent with fairness to both sides”: Robertson Research International Limited v ABG Exploration BV and Others at [16] and [40] (13 October 1999, Unreported, Mr Justice Laddie).
h. When deciding whether to make an order in circumstances where some of the relevant facts are disputed, the Court does not approach the matter as if it were an application for summary judgment: Greco Air Inc v Tokoph [2009] EWHC 115 (QB) [45] per Burton J. Rather, the Court must balance considerations of proportionality and justice, bearing in mind that this is a form of satellite litigation which should not be allowed to expand beyond reasonable bounds.
i. In most cases, justice is adequately served by the Court doing the best it can to resolve disputed matters on the documents, which it does on a balance of probability (Centrehigh Ltd v Amen [2013] EWHC 625 (Ch) at [41]-[42]);
j. The absence of a warning that a party intended to seek an NPCO, given whilst the litigation was still in progress, is capable of being a relevant factor pointing against making an order, if an earlier warning might have altered the way the non-party conducted themselves in ways relevant to the exercise of discretion. If, however, the non-party is, objectively, “the real party” to the litigation, “the absence of a warning may be of little consequence” Deutsche Bank v Sebastian Holdings [2016] EWCA Civ 23 at [32] and [37].
  1. Neither party suggested that there be any cross-examination in this case. In accordance with point (i) in the list above, the parties were content that I did my best on the documentary evidence available to me. The factual background section below is based to a large extent on the very helpful chronology supplied by PMT.


Applying those principles to this case the judge was not persuaded that this was a case where a non party costs order was appropriate.

(i) Was Ms Mathews the real party to the litigation?
    1. I am not persuaded by the submission that Ms Mathews was the real party to the claim at any stage. On the contrary on the evidence I have seen, it appears that LMW remained at times in substance and form the real defendant up to and including the without prejudice save as to costs offer which expired on 11 October.
    1. It was common ground that Ms Mathews controlled LMW. I also accept that by October 2021, Ms Matthews was funding the defence of the claim. In paragraph 65 of her second witness statement Ms Mathews denied lending money personally to LMW to fund the proceedings and she denied paying MSS’s bills submitted to LMW. Nevertheless, when Withers asked the simple question in October 2021 “Is Ms Mathews funding the defendant?” the answer they received was “Ms Mathews is currently funding the defendant” Ms Mathews did not say in terms that they were mistaken. Mr Bailey was also able to point to a difference between the sums which appear to have been paid to MSS from LMW’s account and the sums budgeted for the litigation. Either MSS had outstanding invoices or they were paid by LMA (or Ms Mathews).
    1. In the circumstances, I am prepared to accept that at least by October 2021 Ms Mathews was funding the litigation, probably indirectly via loans from LMA rather than personally. However, this is hardly surprising. LMW had ceased trading on 13 January 2021. As the balance sheet which was sent to Withers shows, it had only limited assets. If one compares the balance sheet sent to Withers in January 2021 with the information provided to the Liquidators in October 2021, it is entirely consistent with Ms Mathews’ evidence that between 27 January 2021 and 14 October 2021 “LMW was working towards a voluntary liquidation and was continuing to receive payments from historical sales and negotiating with landlords in relation to various leases and the return of rental bonds”. By the time LMW goes into liquidation, it is clear that the rental bonds assets have been realised and some creditors have been paid. This is entirely consistent with a company winding up its affairs. Such funding as Ms Mathews provided via LMA or otherwise was in my judgment part of the controlled winding up.
    1. By October 2021, it seems clear that with some assets and some liabilities reduced what was left was only around AUS$30,000 in the bank in LMW’s account, no further source of income but liabilities of at least AUS$98,000. It seems clear that at this point, MSS asked to be put in funds for trial and Ms Mathews on behalf of LMW refused so LMW went into liquidation.
    1. Whilst control and funding are relevant factors, Goknur makes it clear that the touchstone is whether the proceedings were pursued for the benefit of the company or the respondent to the application. Ms Matthews’ evidence is clear. In paragraph 65 of her second witness statement she says “I derived no personal benefit from these proceedings. It was always the intention of LMW to seek to resolve the proceedings on behalf of LMW for the benefit of LMW.” I accept this. It is consistent with the exchanges between the parties and the documents submitted to the Liquidators. In particular, the provision of further information in relation to the pipeline commission claim in August 2021 and making a without prejudice save as to costs offer is consistent with the litigation being pursued for the benefit of the company. Had PMT accepted the offer (from LMW), it would have been funded by Ms Mathews but would have been a settlement by LMW legally and factually.
    1. Mrs Timms’ witness statement did not contain any cogent evidence of what the personal benefit to Ms Mathews of the litigation could be. The closest she got was in paragraph 60 where it was suggested that Ms Mathews’ name is indistinguishable from the brand and a judgment against LMW might have been reported about in the fashion press. I find that an unconvincing suggestion. It is hard to see what reputational damage would have been suffered by a court decision to the effect that LMW had to pay its former agent a commission. It is hard to imagine this hitting the headlines in the fashion press at all, still less that it would cause any reputational damage.
    1. The second suggestion was in paragraph 62 of Ms Timms witness statement. This read:
“Ms Mathews would have benefited personally, albeit indirectly, from a successful defence of the Claim or by seeking to ensure that the Defendant was not amenable to judgement by putting it into an insolvency process in spite of its solvency”
It is hard to follow exactly what is being alleged here. The question to be addressed is whether the respondent to the application was defending or pursuing the proceedings for his or her own benefit. In OCM Maritime LLC v Courage Shipping Co[2022] EWHC 2696, the court was satisfied that the respondent to the NPCO application, a Mr Mallah, was defending the proceedings for a tangible personal benefit:
“[24] I am also satisfied that the litigation was defended for the personal benefit of Mr Mallah. Essentially, the proceedings were about the right to possession of the vessels. Not only were the vessels chartered to companies of which Mr Mallah was the sole beneficial owner. but he regarded them as his own.”
    1. In Turner v Thomas [2022] EWHC 1944 (Ch), Zacaroli J. found that the respondent to a NPCO, a Mr Thomas, who was a director of the corporate Defendant in possession proceedings, liable in a NPCO was the real party to the litigation because: “he would have benefitted from a successful appeal, as it would have enabled him (as the “farmer” of the relevant land) to continue farming the land that he had originally leased from the respondents’ predecessor in title, through the medium of the Company.”
    1. These two cases are merely examples. Benefit can come in all sorts and forms. However, if one asks here what benefit did Ms Mathews stand to make from a successful defence to PMT’s claim, the answer is very hard to discern.
    1. The dispute between the parties was from a very early stage not about liability as such but about simply how much was due to PMT under the Agency Regulations. From an early stage, LMW clearly relied on advice it had received that a relatively small sum was owed and US$70,000 already paid. PMT, by contrast asserted from early on that at least US$700,000 was due. Absent an effective Part 36 offer, the only sense in which there was any prospect of a successful outcome was if LMW’s expert evidence and legal arguments was in all respects preferred respects to that of PMT. This would have meant compensation under Regulation 17 being closer to US120,000 rather than the US$684,000 awarded and in any event a judgment for a sum in favour of PMT.
    1. The claim under Regulation 12 was similarly confined to a dispute about quantum. Seeking to minimise the liability of LMW by serving expert evidence first and foremost potentially benefited LMW rather than Ms Mathews. In terms of a litigation cost benefit analysis, it may not have been the best use of LMW’s remaining funds to continue to defend the claim in particular after the Sales Spreadsheet itself showed the extent of the likely pipeline commission and the experts had met but that is a long way from being evidence that Ms Mathews had anything to gain personally from a successful defence of the proceedings on any realistic scenario.
    1. Even at the extreme hypothetical end of the spectrum, in which somehow PMT failed to prove their claim procedurally or otherwise and the claim was dismissed, then it would have been LMW which gained by having its liabilities reduced and potentially gaining an asset in terms of a claim for recovery of costs. Even on this highly unlikely scenario of a successful outcome, it is LMW which gains and not Ms Mathews.
    1. My firm impression from all the evidence is that far from being personally financially interested in the proceedings or liable to benefit from them, Mrs Mathews simply gave instructions to MSS step by step to deal with the litigation on behalf of LMW. In my judgment, the evidence of what was actually done by MSS in the course of the litigation points firmly towards LMW continuing to be legally, factually and economically the real party to the litigation right up until the expiry of the without prejudice save as to costs offer. Indeed, why would anyone make an offer of that type unless it was a last ditch attempt to get something out of the litigation for LMW.
    1. I should add that I could not follow the argument that the transfer of assets from LMW to LMA in mid 2020 made Ms Mathews the real party to the litigation. The transfer was made before the proceedings commenced (albeit after notice had been given of the claim). If the transfer is voidable because it was an improper attempt to avoid PMT’s claim, that is a matter for the Liquidators to establish in Australia. If the Liquidators successfully challenge the transfer of assets under the ASA, there is a good chance that the costs order made by HHJ Pelling QC will be enforceable against LMW directly and there is no need for this application. Even if I felt that there were a strong case that the restructuring in 2020 was a debt avoidance strategy, I still do not understand how that would make Ms Mathews the ‘real party’ to the litigation in the sense required under Goknur. Any gain she made had already been made and cannot be described as meaning that the litigation was thereafter for her benefit.
(ii) Serious misconduct
    1. As to the second limb on what the application is based, I am also left wholly unpersuaded that there was any serious misconduct in the way that the claim was defended. To the extent that one or two of the particular actions or failures complained of might have come close to the relevant test, I am sure that they did not cause PMT to incur costs that they would not otherwise have incurred.
    1. I will take each of the particulars of misconduct relied upon in turn.
    1. I was not referred to any authority which requires a company to inform a creditor that it has transferred its assets or business. The ASA between LMW and LMA is dated 30 June 2020. This was just under a year after PMT had sent a letter of claim but before proceedings were issued. Even after proceedings are issued, there is no provision of the CPR requiring a defendant to inform a claimant that its assets or business has been sold. The general rule is that claimants must take defendants how they find them and, generally speaking, must bear the risk that they are already or may become unable to satisfy any judgment.
    1. I do not accept that it was seriously misleading of LMW’s solicitors to describe LMW as “a small company with effectively no assets”. First of all, by any measure LMW was a small company. I have no reason to doubt Ms Mathews description of how LMW operated out of a single space with no warehouse and only a few employees. True it had built a significant brand and a chain of seven stores by 2018-19 but I do not think it is incorrect to say that it was a small company. As to whether it “effectively had no assets”, depends on what is meant by effectively in the context of this letter. What is being said I think on fair reading of this letter is that paying any judgment that PMT might secure would not be easy for LMW to pay out of available funds. This is consistent with the suggestion that LMW had overextended itself by taking borrowing from secured creditors, in particular Westpac Bank and Export Finance. I don’t read the letter as suggesting that LMW had no value as a going concern.
    1. However, even if what was being said was a deliberate playing down LMW’s overall financial state, it is quite clear that PMT as LMW’s agent for over a year had a very good idea of the size and nature of LMW’s business. It seems to me to be utterly fanciful to suggest that PMT were in any way misled by this comment or lured into some action that they would not have otherwise taken. The way in which Withers responded to the letter also suggested that PMT were not the slightest bit convinced by the suggestion of impecuniosity. It is clear to me that PMT had indeed “considered carefully whether these are claims it wishes to pursue given the cost of litigation and the ultimate risk of recovery”.
    1. The third and fourth particulars of misconduct are linked and fall to be considered together. The nub of the complaint is that LMW sought to deceive PMT into thinking that it was insolvent in January 2021 and then refused to explain the volte face in April when MSS told Withers that LMW was not insolvent.
    1. First, is it right to acknowledge that Ms Mathews herself says in her evidence that MSS were mistaken when they referred to LMW being insolvent. She refers to it as a “misunderstanding”. However, in my judgment, PMT has sought to make far too much of the use of the word insolvency in this letter. What MSS told Withers initially on the phone and then in writing was, in my judgment, substantially accurate according to the documents I have seen. LMW had in fact ceased to trade on 13 January 2021, its assets had indeed been sold to a new company some months ago and a voluntary liquidation was indeed being pursued. This much is clear from the documents submitted to the Liquidators. Although MSS used the phrase “due to the insolvent nature of the company” it is clear from the rest of the letter that what is being contemplated is not an immediate liquidation because LMW was insolvent in the sense that could not pay its liabilities as they fall due but rather the intention is for the company to be wound up in an orderly fashion by means of a voluntary liquidation.
    1. The balance sheet sent by MSS had been prepared by LMW’s accountant and listed in a standard way the current assets and liabilities. It was not suggested that this document was manufactured or designed to mislead or indeed that it was false. Withers were fully alive to the fact that a balance sheet is just a snap shot.
    1. It is also clear that PMT and Withers did not accept the professed impecuniosity of LMW in any event. Withers not unreasonably immediately focussed on whether the transfer of assets was an attempt to avoid a future judgment. They made it clear that they intended to press on regardless of the suggestion that liquidation might be just round the corner. The use of the phrase “due to the insolvent nature of the company” in the 18 January email did not in my judgment cause PMT to incur expenses that it would otherwise have not incurred.
    1. MSS’s updates sent on 9 February and 4 March as to the impending liquidation on the evidence I have seen were entirely accurate. Withers realistically took the view that there was little they could do about the possibility of LMW going into liquidation other than to instruct solicitors in Australia to pursue their own enquiries, which is what they did. MSS was realistically taking the position that as soon as LMW did go into liquidation it would cease to be instructed.
    1. In the meantime, pending a decision on the timing of the liquidation LMW had no alternative but to continue to engage in the litigation.
    1. As to the volte face in April, it is true that MSS do not explain what the new information or advice was which caused them to say that LMW was not in fact insolvent. But it was also not entirely surprising either. The 13 January email had said that rather than immediate liquidation, LMW wanted to manage its creditors. That is consistent with it not being insolvent in the sense of not being able to pay its debts as they fell due. The April email simply corrected any suggestion of imminent insolvency but said nothing more than LMW is not insolvent. It did not say liquidation is now off the table or that LMW had started to trade again. I have no evidence to suggest that the April email was in any way misleading. It would appear that LMW still had some assets and used them to pay some creditors in the period between first announcing its likely liquidation in January 2021 and it finally happening in October 2021.
    1. Even if the failure to provide answers to Withers questions could be said to amount to serious misconduct or bad faith, it is clear that this failure did not cause PMT to incur costs that it would not have otherwise incurred. When the liquidation did come in October, PMT did not abandon the proceedings and prove in the liquidation, it pressed on with trial. If the liquidation had come earlier in March or April or May, they would in my judgment clearly have done the same thing.
    1. Furthermore, during the period of re-engagement things were done which assisted PMT. LMW’s comments and additions to the Sales Spreadsheet provided by MSS actually made it easier for PMT to prove their Regulation 8 case. The experts clearly co-operated and narrowed the issues which again assisted PMT to put its case in a coherent way to the court. This was therefore not a case where a Defendant sought only to obstruct the proceedings. LMW made appropriate applications whenever they needed to e.g. for extensions of time and for remote participation of witnesses. Withers usually consented to the applications.
      1. More fundamentally, at all times between 13 January 2021 and 13 October 2021, PMT knew that it was dealing with a Defendant which was a financially precarious and non-trading. PMT decided to press on to judgment no doubt in the hope that either a settlement might be reached or enforcement may take place in Australia in any liquidation. The circumstances are therefore in my judgment far removed from the situation of a claimant being messed about and misled by dishonest or obstructive conduct.
    1. I agree that the position taken in paragraph 23 of the Amended Defence looks unreasonable in light of the details later disclosed in the Sales Spreadsheet. However, I consider that in context it falls short of serious misconduct. The legal test for Regulation 8 is accepted, it is said accurately that it will turn on disclosure to be made in due course. The last sentence reads as a holding general denial. What is being signalled is that there will be an argument to be had in due course on the disclosure about “mainly attributable”. But even if this is too generous a reading and the plea crosses the line into serious misconduct, it clearly caused no extra costs to be incurred. PMT knew itself which clients it had introduced. All it needed was to have the details of how much had been sold to whom by LMW. That information was eventually provided in the form of detailed comments on the Sales Spreadsheet which PMT’s counsel deployed at trial to obtain judgment under Regulation 8.
    1. Whilst there were delays in providing some documents, I note that no applications for an unless order or even for specific disclosure were ever made. The Regulation 8 claim resolved itself into just two issues of period and extent of discount and both experts seemed able to express reliable views on the value of the agency based on available documents. I am therefore not convinced that there were failures of disclosure which amounted to serious misconduct.
    1. I also do not accept that it is fair to say that MSS on LMW’s behalf did “the bare minimum” to keep the claim going. There was a period of a few weeks of minimal activity while it was believed that LMW might go into liquidation before disclosure but otherwise LMW’s expert was properly instructed and engaged with his counterpart in a proper way as acknowledged by Withers, the witness statements once corrected were clearly bona fide attempts to explain how the agency from LMW’s perspective had failed, MSS made proper applications when required and agreed documents required for proper case management such as the DRD and the List of Issues. MSS’s conduct did not suggest that they had been instructed at any stage to tread water or disengage. As already noted, LMW’s comments on the Sales Spreadsheet were positively helpful to PMT’s case. In summary, LMW’s engagement (until the money ran out for funding participation in the trial itself on 13 October) was in my view reasonable.
    1. Finally, I am not in a position to take a view on whether the ASA was the result of a long-planned restructuring (as Ms Mathews contends) or was mainly an attempt to make LMW judgment proof in relation to this claim or was perhaps a mixture of two. That is something which must be resolved in Australia if the Liquidators challenge the agreement. My focus has been on whether there is evidence which PMT can point to of improper or deliberately dishonest or obstructive conduct within or directly connected to these proceedings. My conclusion is that there is not.
Standing back
    1. Standing back and asking myself whether in all the circumstances of the case it would be just to make an order under section 51, I do not consider it would be. A perfectly rational decision was made by PMT to start and continue with the claim to trial despite knowing that LMW had ceased to trade and was likely to go into liquidation. Although the process of entering into liquidation took longer than originally suggested and questions posed by Withers in correspondence went unanswered, neither Withers nor PMT were, in my judgment, materially misled at any time by LMW or MSS. In any event, PMT’s reasons for continuing the claim at all stages were clearly based on their own assessment of what they were being told and knew about LMW from their own previous business dealings and third parties engaged in Australia. Thus nothing that LMW did or said made any difference to PMT’s decision to continue with the proceedings and nothing that was said or done amounted to serious impropriety or bad faith. Ms Mathews did not abuse the proceedings for her own benefit. It follows that it is not a case where justice requires that Ms Mathew ought to pay PMT’s costs of the litigation.
  1. For all those reasons, I am not satisfied that this is an appropriate case for a non-party costs order to me be made. The application is dismissed.