Protective costs orders – 2

Baker v (1) Quantum Clothing Group Ltd (2) Meridian (3) Pretty Polly [2008] [EWCA] Civ 823 CA 11 June

The claimant appealed against the dismissal of her claim against her employer for damages for industrial injury suffered by her in the course of her employment. It was apparent that Meridian and Pretty Polly could be affected by the judgment on appeal and they were joined as parties to the proceedings. However, the claimant’s case was funded through a policy of after-the-event (ATE) insurance in respect of the first defendant’s costs. After Meridian and Pretty Polly had been joined as parties, the providers of the ATE policy stated they were not prepared to underwrite a potential costs liability in respect of the added defendants. Accordingly, the claimant applied for an order that the second and third defendant companies should bear the burden of their own costs of her appeal in any event. Unless the application was granted, the claimant would be unable to pursue her appeal. Against this injustice had to be counterbalanced the prejudice that would be caused by forcing the second and third defendants to bear the burden of their own costs in any event. The second and third defendants were not of the claimant’s choosing; they had applied to be joined to the appeal of their own volition in order to pursue their own interests and purposes. The appeal was a broad appeal, which constituted a matter of public interest, affecting not only the immediate parties, but many other potential parties. The costs that would be incurred on the appeal were, by comparison with the costs liabilities accrued in the case to date, relatively small and it is important that those prior costs should not have been incurred pointlessly by bringing the matter to a premature end. In those circumstances and in the interests of justice, the fact that the claimant’s appeal would be stifled if her application was refused, outweighed the injustice that would be caused to Meridian and Pretty Polly in compelling them to bear the burden of their own costs in the appeal.