Parties to proceedings and costs.

1. Parties

2. Allen v Bone [1841] 4 Beav 493
A solicitor may not issue
proceedings in the name
of a client, without the
express agreement of the
client. A solicitor (or costs
lawyer) by using his name
as the legal representative
of a party in any court
document is expressing a
statement that he has
authority to take any step
in the proceedings that he
does.

3. Simmons v. Liberal Opinion Ltd [1911]
1 KB 966
Action taken
unintentionally on
behalf of a non-existent
company
left a solicitor being
liable for the costs
of the plaintiff.

4. West End Hotels Syndicate v. Vayer
[1912] 29 TLR 92
Action taken upon
the instructions of
someone not
properly authorised
to provide
instructions on
behalf of a company
rendered the legal
representative
personally liable for
the costs.

5. Claimant and Defendant
CPR 2.3: a “claimant”
is defined as being a
person who makes a
claim and a
“defendant” is the
person against who a
claim is made.

6. Respondent
CPR 23.1: defines an
application notice as “a
document in which the
applicant states his
intention to seek a court
order” and the person
against whom the order is
sought is to be referred to
as the “respondent”. In
practice, it appears this
terminology is rarely used
in non-family proceedings.

7. Company or legal Corporation
CPR 39.6: a company or
corporation may be
represented at hearings
by an employee, who
may be a director, who
has been so authorised
by the company or
corporation and the
court gives permission
under

8. Charles P. Kinnell & Co. Ltd. v. Harding
Wace & Co. [1918] 1 K.B. 405 (at 413)
Otherwise a
company must be
represented by
solicitor or counsel.

9. A Child
CPR 21.1: a “child” is defined
as a person under 18 years
of age
CPR 21.2(1): a child must
conduct proceedings through
a litigation friend.
CPR 21.2(2): Unless ordered
otherwise by the court he
must conduct proceedings
through a litigation friend.

10. Children and Litigation Friends
CPR 21.9(1): When a child
turns 18 the litigation
friend’s appointment cease.
CPR 21.9(5): After a child
reaches the age of 18 the
child is obliged within 28
days to serve a notice on all
other parties that the
appointment of the litigation
friend has ended.

11. Children and Costs
Form N235: A litigation friend is required
to file a certificate of suitability when
proceedings are issued. In that certificate
the litigation friend must undertake to pay
any costs which the child may be ordered
to pay in relation to the proceedings.
CPR 21.9(6): There is an on going costs
liability to the litigation friend unless the
appropriate notice is served.
CPR 48.5: There are specific costs
provisions to be considered where children
are concerned.
s.1 Children Act 1989: the interest of the
child must come first

12. Protected Parties
Sections 1 to 4 of The Mental
Capacity Act 2005: A person who
by reason of mental disorder within
the meaning of these sections is
deemed as incapable of managing
and administering his property
CPR 21.1(2)(d): a “Protected
Person” means a party who lacks
capacity to conduct proceedings
and affairs was formerly called “a
patient”.

13. Protected Parties and Litigation
Friends
CPR 21.2(1): a protected party must conduct
proceedings through a litigation friend.
CPR 21.2(2): Unless ordered otherwise by
the court a protected party must conduct
proceedings through a litigation friend.
Form N235: A litigation friend is required to
file a certificate of suitability when
proceedings are issued. In that certificate
the litigation friend must undertake to pay
any costs which the protected party may be
ordered to pay in relation to the
proceedings.
CPR 21.9(2): When a client regains capacity
to conduct proceedings the litigations friend
will remain appointed until court order

14. Protected Parties and Costs
CPR 21.9(6): There is an on
going costs liability to the
litigation friend unless the
appropriate notice is
served.
CPR 46.4: There are specific
costs provisions to be
considered where protected
parties are concerned.

15. Litigants in Person
CPR 46.5(6): A Litigant in person
can include a company or other
corporation, a barrister, a solicitor,
a solicitor’s employee, a manager
of a body recognised under
section 9 of the Administration of
Justice Act 1985 (incorporated
practices) and a person who, for
the purposes of the Legal Services
Act 2007, is authorised to conduct
litigation.

16. Litigants in Person Costs
Litigants in Person
(Costs and Expenses)
Act 1975: Litigants in
person are entitled in
civil, but not criminal,
proceedings to recover
costs, if so awarded,
under the Act.

17. McKenzie Friends
McKenzie v. McKenzie
[1971] P. 33: A litigant in
person may be assisted
at a hearing by another
person. The litigant must
be present and the friend
may help by taking notes,
quietly prompting the
litigant and offering
advice and suggestions.

18. Paragon Finance v. Noueiri (Practice
Note) [2001] EWCA. Civ 402
The court may
permit the friend
to address the
court, the issues
as to whether
such permission
should be given
were given airing

19. Third Parties
s.34 Supreme Court Act 1981:
Following an application for disclosure
under CPR 25.5 a court order may be
made against a non-party to the
proceedings
s.51(1) Supreme Court Act 1981:
which provides that “…… the costs of
and incidental to all proceedings in (a)
the civil division of the court of
Appeal; (b) the High Court, and (c)
any county court, shall be at the
discretion of the court.
S. 51(3) Supreme Court Act 1981:
states: “the court shall full power to
determine by whom and to what
extent the costs are to be paid”.

20. Symphony Group Plc v. Hodgson
[1994] QB 179
Balcombe LJ
stated that an
order for the
payment of costs
by a non-party will
always be
“exceptional”.

21. Dymocks Franchise Systems (NSW)
Pty Ltd v Todd [2004] UKPC 39
Lord Brown clarified: “exceptional” in this
context means no more than outside the
ordinary run of cases where parties pursue
or defend claims for their own benefit and at
their own expense. The ultimate question in
any such “exceptional” case is whether in all
the circumstances it is just to make the
order. Generally speaking the discretion will
not be exercised against “pure funders”,
described in paragraph 40 of Hamilton v Al
Fayed as those with no personal interest in
the litigation, who do not stand to benefit
from it, are not funding it as a matter of
business, and in no way seek to control its
course”

22. Becomes a Party
CPR 46.1 provides that the person or
body against whom such an order is
made is generally entitled to costs but
the court may order otherwise.
CPR 46.2: if costs are awarded in favour
of or against a person who is not a
party to the proceedings, that person
must be added to the proceedings for
the purposes of costs only and the
person must be given a reasonable
opportunity to attend the hearing.
The rule does not apply to costs
awarded against the Legal Services
Commission, nor when a wasted costs
order is made, nor where there has
been an application for pre-action
disclosure or inspection.

23. References
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Slide 13: http://www.theinjurylawyers.co.uk/injury-lawyers-blog/2011/05/24/litigation-friends-the-facts/
Slide 14: http://www.webweaver.nu/clipart/party.shtml, https://openclipart.org/detail/22121/magic-shield-by-peileppe
Slide 15: http://www.lawgazette.co.uk/law/benchmarks/costs-and-litigants-in-person/5038419.fullarticle
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