Against non-party

(1) Equitas Ltd (2) Additional Underwriting Agencies (No 9) Ltd v (1) Horace Holman & Co Ltd (2) Arwyn Morgan Powell [2008] EWHC 2287 QBD (Comm) 3 October

An application for a non-party costs order should be made to the trial judge, notwithstanding that he has expressed a view about the conduct of the non-party. Unless the trial judge was precluded from hearing the application for some compelling reason, it was his duty to do so, Bahai v Rashidian [1985] 1 WLR 1337 CA (Civ Div) applied. A trial judge should not decline to hear an application for a non-party costs order without good reason. It was not wrong for a judge to mention the possibility of an application for a non-party costs order at the outset of the trial. The immunity of a witness did not prevent his evidence being used on a subsequent application for a non-party costs order. Even if the judge had erred by raising the question of an application for a non-party costs order or in not restricting the cross-examination of the third party, a fair-minded and informed observer would not have concluded that the judge would be biased in determining the application. Therefore, the application for the judge to recuse himself was refused.