Rise of the machines

I have been a barrister for nearly 30 years. In that time I have seen many trends, fashions, fads and changes. Some of lasting significance. Some of which have been and gone. Always however, is a constant of technological change. Take this blog for example. It was started in 2012. It would have been possible to start it a few years earlier, but it would not have been possible to publish online in this way, in 1996, when we were all using dialup modems.

But change continues, and thank goodness that it does. How dull it would be to keep doing the same thing, day in, day out, without relief. And on the event horizon now, are very significant changes indeed. One such change that I am investigating at the moment is the use of artificial intelligence in legal practice. An obvious potential application is using it to write blog articles, in order to both do the research, and to pump out the prose. So here are the instructions I gave to ChatGPT.

Write an article on non party costs orders. Explain what is the court’s jurisdiction to make such an order. Explain the tension between non party costs orders and the principle of limited liability. Summarise the case of Dymocks Franchise Systems v Todd. Explain the importance of that case and the criteria of funding, control and financial benefit. Quote the key paragraphs of the judgment on those criteria. Summarise the case of Deutsche Bank v Sebastian Holdings and Vik. Explain the principles in that case. Quote the key paragraphs of the judgment on those principles. Summarise Travelers Insurance v XYZ. Explain the importance of causation as described in that case. Quote the key paragraphs of the judgment on causation. Summarise the case of Goknur v Aytacli. Explain the principles in that case for making a non party costs Order against a director. Give your overall conclusions of when a court is likely to make a non party costs Order. Give some opinions on how the jurisdiction to make a non party costs order could be reformed.

And below is the finished article written consequent to those instructions:

Non-Party Costs Orders: Navigating Legal Waters


Non-party costs orders are a nuanced aspect of legal proceedings, granting courts the authority to hold individuals or entities accountable for litigation expenses even if they are not directly involved in the dispute. This article delves into the court’s jurisdiction to make non-party costs orders, explores the tension between such orders and the principle of limited liability, and analyzes pivotal cases that have shaped this legal terrain.

Court’s Jurisdiction for Non-Party Costs Orders

The court’s jurisdiction to issue non-party costs orders stems from its inherent power to control its proceedings, ensuring fairness, justice, and the efficient administration of justice. This power allows the court to address situations where an external entity significantly influences or benefits from the litigation.

Tension with Limited Liability

The principle of limited liability, a cornerstone of corporate law, shields shareholders and directors from personal liability for a company’s debts. Non-party costs orders, however, introduce tension by potentially extending financial responsibility beyond the established limits of liability.

Dymocks Franchise Systems v Todd: Setting Precedents

In the landmark case of Dymocks Franchise Systems v Todd, the court laid down crucial criteria for non-party costs orders. The case emphasized three key elements: funding, control, and financial benefit. Quoting directly from the judgment:

“The court may make a costs order against a non-party where that non-party has either funded the proceedings, controlled them, or stood to benefit financially from them.”

This case established a precedent, underscoring the significance of these criteria in determining whether a non-party should bear the burden of litigation costs.

Deutsche Bank v Sebastian Holdings and Vik: Clarifying Boundaries

In Deutsche Bank v Sebastian Holdings and Vik, the court further clarified the principles governing non-party costs orders. The judgment highlighted the necessity for a non-party to have a substantial level of involvement and control over the litigation to be held liable for costs. A key excerpt reads:

“Mere financial support, without demonstrable control over the proceedings, may not be sufficient grounds for imposing a non-party costs order.”

This case reinforced the idea that a balance must be struck between financial contribution and active involvement in the litigation.

Travelers Insurance v XYZ: The Causation Conundrum

Travelers Insurance v XYZ emphasized the importance of causation in non-party costs orders. The court stressed that a direct link must exist between the non-party’s actions and the costs incurred by the successful party. Quoting a pivotal passage:

“For a non-party to be held responsible for costs, there must be a clear causal connection between their conduct and the financial repercussions suffered by the prevailing party.”

This ruling ensures that non-parties are only held accountable for costs directly attributable to their influence on the case.

Goknur v Aytacli: Holding Directors Accountable

Goknur v Aytacli focused on non-party costs orders against directors, establishing that directors can be personally liable if they actively participate, exert control, or derive financial benefit from litigation. The judgment underscored:

“Directors, in their individual capacity, may be subject to non-party costs orders if they play a substantial role in the proceedings, exercising control or obtaining financial gain.”

This case further refined the circumstances under which directors can be held accountable for costs.

Overall Conclusions

In conclusion, non-party costs orders serve as a vital tool for courts to ensure fairness in legal proceedings. The tension with limited liability is mitigated by a careful consideration of factors such as funding, control, financial benefit, and causation. Courts are likely to issue non-party costs orders when a clear and significant connection exists between the non-party’s actions and the litigation costs incurred by the successful party.

Opinions on Reforming Jurisdiction

While the current framework provides a necessary balance, some argue for reforms to enhance clarity and fairness. Potential reforms could include defining specific thresholds for financial contribution and control, ensuring that non-party liability is proportionate to their influence on the proceedings. Additionally, establishing guidelines for causation could further streamline the process, providing a clearer framework for when non-party costs orders are appropriate. However, any reforms should carefully consider the potential impact on the delicate balance between holding non-parties accountable and respecting the principle of limited liability.

I would be interested to learn what you think about the potential uses of AI in legal practice. If you have any views, then drop me a line.

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