Dr Robin Rudd v John Bridle
| Jurisdiction | England & Wales |
| Judge | Mr Justice Warby |
| Judgment Date | 24 July 2019 |
| Neutral Citation | [2019] EWHC 1986 (QB) |
| Date | 24 July 2019 |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ16X02674 |
[2019] EWHC 1986 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE Mr Justice Warby
Case No: HQ16X02674
Guy Vassall-Adams QC and Tim James-Matthews (instructed by Leigh Day) for the Claimant
James Fairbairn (of Dentons UK and Middle East LLP) for the Defendants
Hearing date: 17 July 2019
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
This is a data protection claim. On 10 April 2019, following a three-day trial in March, I gave judgment on the claim: see [2019] EWHC 893 (QB) (“the Judgment”). I ordered the first defendant (“Mr Bridle”) to provide certain further information, pursuant to s 7(9) of the Data Protection Act 1998. I dismissed the remainder of the claim against him, and the whole of the claim against the second defendant (“the Company”).
The orders that matter for present purposes are those relating to costs. I ordered that the claimant should pay the Company's costs, on the standard basis. But I ordered Mr Bridle to indemnify the claimant against that liability; to pay all the claimant's costs of his claim against the Company, to be assessed on the indemnity basis; and to pay half the claimant's costs of the claim against him. I ordered Mr Bridle to make an interim payment on account of his costs liability to the claimant, in the sum of £50,000. That was payable by 10 July 2019.
The interim payment was made six weeks early, on 22 May 2019.
On 24 June 2019, the claimant's solicitors served on those acting for the defendants a bill of costs in the sum of £264,176.19. That was the sum claimed in respect of the claimant's costs of the claim against the Company and half the costs of its claim against Mr Bridle. The Company's last approved costs budget for the whole proceedings was approximately £106,000. Correspondence about those costs was continuing.
At or about this time Mr and Mrs Bridle put their home on the market at an asking price, I am told, of £910,000.
On 28 June 2019, the claimant filed the application notice that is before me now. There are two applications:
(1) The first is for disclosure by Mr Bridle and the Company of “the identity of the individuals, companies or entities who have financed or provided financial support to the defendants or either of them during and in relation to the present litigation and related documents” (“the Funding Disclosure Application”).
(2) Secondly, the claimant seeks an order for the disclosure by Mr Bridle of three documents said to be “mentioned” in a witness statement of 6 June 2019, made by Mr Robin Francis of the defendants' solicitors (“the Witness Statement Application”).
It will be convenient to deal with these applications separately, in turn.
Funding Disclosure
Legal framework
The basic legal framework is not in dispute. The court has power to make orders for costs against non-parties. This is part of the general power to make orders as to the costs of proceedings which is conferred by s 51(3) of the Senior Courts Act 1981: see Aiden Shipping Co Ltd v Interbulk Ltd [1986] AC 965. There are many circumstances that could in principle justify a third-party costs order, but commonly, third parties are targeted on the basis that they have funded an unmeritorious claim or defence.
The factors to be considered, and the relevant principles, have been the subject of consideration in a substantial number of reported and unreported cases, including Symphony Group Plc v Hodgson [1994] QB 179 (CA), Hamilton v Al Fayed (No 2) [2002] EWCA Civ 665 [2003] QB 1175, Dymocks Franchise Systems (NSW) Pty Ltd v Todd & Others [2004] UK PC 39 [2004] 1 WLR 2807, Petroleo Brasileiro SA v Petromec Inc [2005] EWHC 2430 (Comm) [2005] All ER (D) 48, and Deutsche Bank AG v Sebastian Holdings Inc [2016] EWCA Civ 23. The general principles that can be extracted from these authorities include the following:
(1) The power to make a costs order against a non-party is exceptional in the sense that such orders are not usually made. Such an order may only be made where there has been conduct by the non-party such as to render the order just and reasonable: see Symphony Group at 192H (Balcombe LJ);
(2) The power will not generally be used against “pure funders”, that is to say persons who provide financial support to a litigant but who have no personal interest in the litigation, who do not stand to benefit from it, who do not fund the litigation as a matter of business, and who do not seek to control its course: Dymocks [25(1) – (3)] (Lord Brown).
The modern jurisprudence is well summarised in Turvill v Bird [2016] EWCA Civ 703 [2016] BLR 522, where Hamblen LJ (with whom Gross LJ agreed) said this:
“24. A number of recent authorities have stressed that this is a jurisdiction which must be exercised in the interests of justice and that its exercise should not be overcomplicated by authority.”
He was referring, among others, to these observations of Moore-Bick LJ in the Deutsche Bank case at [62]:
“We think it important to emphasise that the only immutable principle is that the discretion must be exercised justly. It should also be recognised that, since the decision involves an exercise of discretion, limited assistance is likely to be gained from the citation of other decisions at first instance in which judges have or have not granted an order of this kind.”
Hamblen LJ went on to say this:
“27. The authorities illustrate “the variety of circumstances in which the court is likely to be called upon to exercise the discretion” and “the kind of considerations upon which the court will focus”, but are not to be treated as providing “a rulebook”. The kind of considerations illustrated by the authorities include the following:
(1) Whether the non-party funds the proceedings and substantially also controls or is to benefit from them and is the “real party” to them;
(2) Whether the non-party promotes and funds proceedings by an insolvent company solely or substantially for his own financial benefit;
(3) Whether there is impropriety by the non-party in the pursuit of the litigation.
(4) Whether the non-party causes costs to be incurred….
28. (1) (2) and (3) are all examples of circumstances in which non-party costs orders have been made. Generally (4), causation, is also required “to some extent” (per Morritt LJ in Global Equities Ltd v Globe Legal Services Ltd [1999] BLR 232) although it is not a necessary pre-condition, as held in Total Spares & Supplies Ltd v Antares SRL [2006] EWHC 1537 (Ch). In that case, however, there was still a causal link between the non-party's actions and the claimant's costs recovery in that he had deprived the claimant of any realistic opportunity of recovering its costs. The link was with the recovery of costs rather than the incurring of costs, but in both cases the claimant has to bear costs in circumstances where he otherwise would not have done.”
Procedurally, a court considering whether to exercise the power to make a third-party costs order must add the third party to the proceedings for the purposes of costs only, and give the person a reasonable opportunity to attend a hearing at which the court will consider the matter further: CPR 46.2(1). There may of course be a need to identify third parties, as a preliminary step towards engaging them in this process. Funders may be covert, or anonymous. It is clear that the court has a discretionary power, ancillary to its costs jurisdiction, to require a party to disclose to the other party the names of those who have financed the litigation: Abraham v Thompson [1997] 4 All ER 362, 368 (CA), Raiffeisen Zentralbank Osterreich AG v Crossseas Shipping Ltd [2003] EWHC 1381 (Comm) [7] (Morison J). This is the power relied on by the claimant on this application.
There is authority that this power extends to directing the disclosure of information going beyond the mere identity of the third-party funder. The court can make whatever ancillary orders will make the section 51 remedy effective, so that in an appropriate case the court may exercise a discretion to order more against the party who has been funded than simply the disclosure of the names of those individuals who have funded the litigation: see Automotive Latch Systems Ltd v Honeywell International Inc [2008] EWHC 3442 (Comm) [13], [16] (Flaux J).
The disclosure sought and ordered in the Automotive Latch case extended to the identities of any funders; the amount of such funding; the terms on which it was provided; the extent of each such party's involvement in the conduct of the action; and the nature and extent of the third party's interest (financial or otherwise) in the outcome of the action: see ibid [3] and [17]. The order sought on this application tracks the form of order granted in that case.
Issues
The first main issue between the parties in relation to the Funding Disclosure Application is whether the claimant has made out any or any sufficient case that the defence of the claim was to any material extent funded by any third party.
The second main issue is whether, in any event, the claimant would have a real prospect of securing a third-party costs order. The claimant's case is that there is a real prospect that this might be sought, and granted, and the court should grant the disclosure sought, to allow the claimant to consider his position. The case for Mr Bridle is that there is no real prospect that any such order would be made. It is said that (a) the costs claimed are clearly grossly...
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