Some costs disputes move beyond the parties on the record.
A non-party costs application asks whether someone who is not named as a party should pay costs. That person may be a funder, insurer, director, shareholder, claims manager, credit hire company, commercial backer or litigation vehicle.
A wasted costs application is different. It asks whether a solicitor, counsel or other legal representative should personally pay costs said to have been wasted by improper, unreasonable or negligent conduct.
Both applications are serious. Neither should be made casually.
Non-party costs
A non-party costs order is not simply a way of finding someone solvent to pay.
The court will usually want to know who funded the litigation, who controlled it, who stood to benefit from it, what warnings were given, whether the application was made promptly, and whether it is just to make the order.
Wasted costs
A wasted costs application is an application against a legal representative personally. It may involve professional reputation, privilege, confidentiality, causation and fairness.
The question is not whether the client lost. Nor is it simply whether a lawyer made a mistake. The question is whether the conduct crossed the relevant threshold and caused identifiable costs to be wasted.
What I do
I advise applicants and respondents on the strength of the evidence, the proper target, the procedural route, timing, warning letters, disclosure, causation, privilege, proportionality and settlement.
I draft warning letters, applications, witness statements, draft orders, skeleton arguments and written submissions. I also appear at hearings.
What to send
For a non-party costs matter, send the pleadings, judgment or order, costs order, funding agreement, ATE policy, credit hire agreement, claims management agreement, retainer documents, correspondence, warning letters and evidence of control or funding.
For a wasted costs matter, send the pleadings, relevant orders, judgment or transcript if available, application or threatened application, evidence relied upon, correspondence, costs schedule, procedural history, and a short note explaining the conduct complained of.