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	England and Wales High Court (Technology and Construction Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Technology and Construction Court) Decisions >> Jackson & Ors v Thakrar & Ors [2007] EWHC 626 (TCC) (22 March 2007) URL: http://www.bailii.org/ew/cases/EWHC/TCC/2007/626.html Cite as: [2007] BPIR 367, [2007] EWHC 626 (TCC), [2007] BLR 241, [2008] 1 All ER 601

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT

		St Dunstan's House 133-137 Fetter Lane London, EC4A 1HD
		22nd March 2007

- NO.4 -

His Honour Judge Peter Coulson QC:

Introduction

1. On 20 February 2007 I handed down my judgment on the compromise issue.^[1] I concluded that, for a variety of reasons, the Defending/Applicant Parties could not demonstrate that there had been a binding compromise of this complex litigation. I therefore rejected their application for a declaration to that effect. At the subsequent costs hearing I ruled that the Defending/Applicant Parties had to pay the Claiming Parties' costs of the compromise issue on an indemnity basis. Party 1, the Trustee in Bankruptcy of Subhash Thakrar ("Subhash"), now seeks an order, pursuant to Section 51 of the Supreme Court Act 1981, that Mrs Kiran Thakrar ("Kiran"), Subhash's wife who provided funds for his representation, be joined into the proceedings for costs purposes, so that she can be made liable for all or some of the Trustee's costs of the compromise issue.
2. Section 51(1) provides that "the costs of and incidental to all proceedings in … the High Court … shall be in the discretion of the court." Section 51(3) makes plain that the court "shall have full power to determine by whom and to what extent the costs are to be paid". Ever since the House of Lords decision in Aiden Shipping Co Ltd v Interbulk Ltd [1986] AC 965, it has been clear that Section 51 permits a court to award costs against a person who was not a party to the proceedings. There have been numerous cases on the extent and limits of this jurisdiction, some of which are analysed below.
3. There are broadly four issues between the parties. They are:

i) Whether there is sufficient causal connection between Kiran's funding and the costs of the compromise issue and, if not, whether as a matter of principle that is determinative of this application;

ii) Whether Kiran can be classified as a 'pure' funder and, if so, whether on the facts there is any reason why the general presumption that a Section 51 order will not be made in such a case has been displaced ;

iii) Whether Kiran's role as a director and shareholder of SK Thakrar & Co Ltd (Party 16) can or should make any difference to the outcome of the Section 51 application;

iv) Whether, in all the circumstances of this case, the court should exercise its discretion in favour of the Section 51 application.

4. I set out at paragraphs 5, 6, and 7 below the relevant factual background. I then go on to address each of the four issues noted above.

Factual Background

5. Following an exchange of correspondence in late October/early November 2006, the Defending Parties claimed that they had achieved a binding compromise of the litigation in the sum of £20.1 million. When the Claiming Parties disputed that assertion, Glen International Ltd (Party 14), who are the only one of the Defending Parties with any substantial assets, issued an application for a declaration that the litigation had indeed been compromised. They were joined in that application by Mr Harjivan, Party 18, the apparent owner of the shares in Glen. However, in the event, he took no part at all in the preparation for and hearing of the application for a declaration that the litigation had been compromised.
6. That hearing took place before me on 22-24 January 2007. Although Subhash was represented at the hearing by Mr Howard, and although Mr Sen acted for a number of the other Thakrar family members, and the limited company (Party 16), I have no hesitation in finding that the burden of the application for a declaration fell on Glen. Thus, at the three day hearing, it was Mr Jones QC, on behalf of Glen, who made the vast majority of the running on behalf of the Defending Parties. He made most of the oral submissions to me, and undertook most of the cross-examination. Mr Howard and Mr Sen made oral submissions for about 20 minutes each, and their cross-examination was minimal.
7. Although Mr Howard had been involved for Subhash in the run-up to the hearing, his participation at the hearing itself depended on the payment of a brief fee. It is common ground that that fee was funded, in large part at least, by Kiran. In the week before the hearing, Kiran took £10,000 out of her building society account and sent it to Nathans, Mr Howard's instructing solicitors. The bulk of that money was then paid to Mr Howard by way of a brief fee. In consequence, Mr Howard attended the three day hearing before me on 22 – 24 January.

Issue 1: Causation

8. Mr Howard's first submission was that causation was a necessary pre-condition of any order under Section 51. He submitted that, if I concluded that the hearing in January 2007 would have taken place in any event, with or without the assistance of the funding provided to Subhash by Kiran, the non-party, then there was no room for an order to be made. He said that, in the present case, the three day hearing on the compromise issue would have taken place anyway, whether or not Subhash was represented at that hearing. He maintained that it was principally Glen who was pursuing the compromise issue (because they had the most to gain from it) and it was Glen, on the Defending Parties' side, who constituted the lead party at that hearing. Effectively, he said, the key question was whether the funding of Subhash caused the Trustee (Party 1) to incur costs which she otherwise not have done. It was his case that the answer was No, because the Trustee would have incurred precisely the same costs anyway.
9. In response, Mrs Giret QC suggested that this was a novel argument, which relied on the fact that there were other parties in the litigation, not just the Section 51 applicant and the funded party, and that such a situation had not been considered by the courts before. She said that the reported cases were solely concerned with the relationship between the funding party and the funder, and that the existence of any other parties was irrelevant to the proper operation of Section 51. It was her case that the relevant question was whether, but for the funds provided by the non-party, the funded party would have taken part in the hearing. She said that the answer to this question was No, because Subhash needed Kiran's £10,000 to pay for his representation at the January hearing.
10. I was referred to four cases on the question of causation. The first of those was Fulton Motors Ltd v Toyota (GB) Ltd (CA, 23.7.99). In that case, Fulton had gone into administrative receivership. The receiver funded the litigation prior to April 1999, when the directors took over the funding of the appeal. The appeal was dismissed in July 1999. The Court of Appeal concluded that it was not an appeal which, on any realistic objective assessment, could be said to have had good prospects of success. They therefore made a Section 51 order against the directors personally, but limited to the period between April and July 1999. I am bound to say that I consider that this case was unremarkable on its facts, and was not of any particular assistance on the causation issue with which I have to deal. In Fulton, there plainly would have been no appeal from April 1999 onwards but for the funding provided by the directors.
11. Of much greater relevance to the causation issue before me were the judgments of the Court of Appeal in Hamilton v Al Fayed (No.2) [2002] EWCA Civ 665; [2002] 3 All ER 641. There the Court of Appeal reviewed numerous authorities under Section 51, and it will be necessary for me to refer later to the judgments of Simon Brown and Hale LJJ on some of the subsequent issues that arise in this case. For present purposes, however, it is necessary to refer only to paragraphs 52 – 57 of the judgment of Simon Brown LJ (as he then was). There he dealt with a causation argument put forward by Lord Portsmouth, one of the funders of the bankrupt former MP, Neil Hamilton, against whom Mohammed Al Fayed was seeking a costs order pursuant to Section 51. Lord Portsmouth's £100,000 contribution was made on 26 October 1999, which was after Mr Hamilton's solicitors had taken the decision to proceed with the case, irrespective of whether any further donations were made. Simon Brown LJ said:

"54. Given that proof of causation is a necessary pre-condition of the making of a Section 51 order against a non-party – as to which there is ample authority and, as I understand it, no dispute – Mr Wardell submits that the bare facts just recited demonstrate of themselves that in Lord Portsmouth's case, such proof was wanting – that, indeed, Lord Portsmouth's contribution plainly did not cause Mr Al Fayed to incur any costs which he would not otherwise have incurred …

56. … The mere fact that the later contributors knew nothing of the Rubicon having been crossed [i.e. the decision to proceed to trial] cannot logically avail Mr Al Fayed. Nor can the fact that the solicitors no doubt hoped for and perhaps even expected further contributions to be made.

57. The argument, I have to say, appears to me not merely irresistible but also to demonstrate that there would need to be further factual exploration along these lines in all pure funding cases were they not to be subject to a general presumption against Section 51 liability in any event…"

12. The third case on causation is the decision of the Privy Council in Dymocks Franchise Systems (NSW) Pty Ltd v Todd & Ors [2004] UKPC 39; [2004] 1 WLR 2807. There, Lord Brown of Eaton-Under-Heywood referred to what he himself had said in Hamilton before, at paragraph 20, going on to say:

"Although the position may well be different when a number of non-parties act in concert, their Lordships are content to assume for the purposes of this application that a non-party could not ordinarily be made liable for costs if those costs would in any event have been incurred even without such non-party's involvement in the proceedings."

13. The final case on causation to which I was referred was Koninklijke Philips Electronics N.V. v Aventi Limited and Ors [2003] EWHC 2589 (Pat). There, Pumfrey J referred to Hamilton as emphasising the need for a casual relationship between the activities of the funded party on the one hand and his receipt of funding on the other. He observed that "if the evidence were that the funded party would have gone ahead anyway, the case for an order for costs against the funder is destroyed". On the facts of that case, the judge made a Section 51 order because he was satisfied that Philips incurred costs which, but for the funding of the defendant, Aventi, by the funder, Princo, would not have been incurred (see paragraphs 28, 33 and 38 of the judgment). He also found that Princo had a direct interest in the outcome of the litigation.
14. It seems to me that the present dispute between the parties on the causation issue comes down to one simple point. Mrs Giret QC submits, by reference to Hamilton, and Pumfrey J's comment in Philips about the relationship between the funded party's activities and his receipt of funding, that what matters in law is the reason why the funded party is present at the hearing or trial: if the funded party is only present in court because of the funder, then she says that the necessary causation has been made out. Mr Howard submits, by reference to Hamilton and Dymocks, that the key issue is what caused the Section 51 applicant to incur the costs which are now the subject of the application, and that if those costs would have been incurred in any event, whether the funding was provided or not, the application must fail as a matter of causation. For the reasons set out below, I am in no doubt that Mr Howard's analysis is correct.
15. It is right that the majority of the cases under Section 51 are concerned with the relationship between the funder and the funded party: see, for example, the decision in Fulton. But that seems to me to be entirely a function of the fact that, in those cases, if the funder had not provided the funded party with the wherewithal to pursue or defend the litigation, there would have been no litigation at all, and therefore the other party's costs, which were the subject of the subsequent Section 51 application, would never have been incurred. Plainly, in a Section 51 application, what matters is whether the funding provided by the non-party caused the applicant to incur costs which he would not otherwise have incurred. That must be the relevant test on causation.
16. Support for the proposition that what matters is whether the costs that are the subject of the Section 51 application have been incurred as a result of the funding provided by the non-party can be found in Hamilton, where Simon Brown LJ decided the issue of causation on the basis that Lord Portsmouth's contribution to Neil Hamilton "plainly did not cause Mr Al-Fayed to incur any costs which he would not otherwise have incurred". Similarly, in Dymocks, Lord Brown stated that a non-party "could not ordinarily be made liable for costs if those costs would in any event have been incurred even without such non-party's involvement in the proceedings". It seems to me that those two statements of principle are clear and I am bound by them. Moreover, I respectfully agree with the simple logic that they convey. If the Section 51 applicant would have incurred the relevant costs in any event, whether the funded party was funded by the non-party or not, then it would be wrong in principle to make a Section 51 order.
17. I should also add that, notwithstanding Pumfrey J's general comment in Philips about the relationship between the activities of the funded party and his receipt of funding, upon which Mrs Giret QC relied so heavily, the learned judge's decision in that case followed precisely the principle which I have outlined in paragraphs 15 and 16 above: he was satisfied that Aventi would not have defended the action if it had not been for the funding from Princo, and that therefore Philips incurred costs pursuing Aventi which, but for the funding, they would not have incurred.
18. In the present case, I find that, if Kiran had chosen not to withdraw the £10,000 from her building society, two things would have happened. First, Mr Howard would not have attended the hearing on 22-24 January 2007 and Subhash would not have been represented before me at the hearing of the compromise issue. Secondly, the compromise hearing would then have unfolded precisely as it did, with the only difference being that I would have been deprived of the benefit of Mr Howard's brief cross-examination of Mr Patel and the 20 minutes of his oral submissions.
19. I am in no doubt at all that, if Subhash had not been represented at the compromise hearing, the Trustee would have incurred precisely the same costs as she in fact incurred. All of the Trustee's costs would have been incurred in any event in order to defeat, as she did, the application made and pursued by Glen. As I am sure he would agree, Mr Howard's role at the hearing, as a representative of Subhash, amounted to that of a bit-part player, and I find that it was ultimately irrelevant to the costs incurred by the Trustee.
20. Accordingly, I accept Mr Howard's first proposition. Kiran's funding of Subhash's legal team for the January hearing did not cause the Trustee to incur costs which she would not otherwise have done. In those circumstances, in accordance with the principle outlined by the Court of Appeal in Hamilton, and by the Privy Council in Dymocks, I reject the Section 51 application. However, out of deference to the careful submissions of both counsel, it is appropriate for me to go on and consider the other arguments that were raised before me. I do so therefore on the assumption that I am wrong on the causation issue.

Issue 2: Kiran's Status As A Funder

21. The status issue arises in this way. The authorities (some of which are examined in greater detail below) establish that the court will be much less likely to make a Section 51 order against a 'pure' funder, and much more likely to make such an order against a professional funder (like an insurer), or one with a financial interest in the outcome of the litigation. Mr Howard submits that Kiran is a pure funder, motivated by love for her bankrupt husband, and should not, in line with the authorities, be made the subject of a Section 51 order. Mrs Giret QC submits that, to the contrary, Kiran had a clear financial interest in the outcome of the compromise issue. Moreover, even if I was against her on that submission and I concluded that Kiran was a pure funder, Mrs Giret QC also suggests that Subhash's pursuit of the compromise issue was oppressive and/or triggered by an ulterior motive, which would constitute an exception to the usual presumption that a Section 51 order could not be made against a pure funder. I deal with those points below.
22. The authorities concerned with the status of a private, non-party funder start with Cooper & Anor v Maxwell (CA 20.3.92). In that case Kevin Maxwell pursued and lost an appeal against a decision at first instance which rejected his contention that he was entitled to rely on the privilege against self-incrimination as a ground for refusing to answer questions put to him by liquidators. Mr Maxwell's costs of his unsuccessful appeal were funded by his mother, Mrs Elizabeth Maxwell, the widow of Robert Maxwell. The liquidators sought a Section 51 order against Mrs Maxwell. The Court of Appeal refused to make such an order. Dillon LJ said that the appeal had been brought bona fide, and concluded that justice did not require Mrs Maxwell, having elected to provide money for her son's costs and legal expenses, to pay the costs of the other side which had been successful in the litigation for which the funds were used.
23. Although Murphy v Young & Co's Brewery Plc [1997] 1 All ER 518 was not a case about a private funder, Philips LJ (as he then was) commented on the decision in Cooper v Maxwell:

"This decision demonstrates a proposition that [counsel] has not sought to challenge. Funding alone will not justify an order against the funder under s.51. I do not consider that an order under s.51 will normally be appropriate where a disinterested relative has, out of natural affection, funded costs of a claim or a defence that is reasonably advanced."

24. A similar situation, although a different result, arose in Thistleton v Hendrick [1992] 32 Con LR 123. That was a building case in which the plaintiff builder sued the employer for the balance due, and the defendant successfully obtained judgment on his counterclaim. It then transpired that the plaintiff's mother had funded her son's case. His Honour Judge John Hicks QC concluded that it was appropriate to make a Section 51 order against Mrs Thistleton, particularly as she had funded a positive claim, as opposed to a defence to a claim that had been brought by somebody else. The Judge distinguished the Maxwell case on the ground that Kevin Maxwell's appeal had concerned an important point of law on which there had been a difference of opinion between Judges at first instance. He also concluded that it was reasonable to make the order because Mrs Thistleton had known, when funding her son's litigation, that he was unlikely to be able to pay Mr Hendrix's costs if ordered to do so. For the reasons noted below, it is now doubtful as to whether the decision in Thistleton remains good law.
25. The other relevant private funded case is Locabail (UK) Ltd v Bayfield Properties Ltd (Lawrence Collins QC, 20 March 1999). In that case, Mrs Barbara Emmanuel failed to set aside a possession order arising out of various steps taken by her estranged husband, Mr Ares Emmanuel. Mrs Emmanuel's application was funded by Mr Peter Tavoulareas, who was Mrs Emmanuel's first husband. He had given evidence in support of her position and had recommended to her the firm of solicitors who went on to act for her in the litigation. Although he had no financial obligation towards Barbara, he accepted in cross-examination that "it really wouldn't do me well to see the mother of my two children without a home". The Judge referred to both Maxwell and Thistleton and paid particular attention to that latter decision. He made the Section 51 order that was sought.
26. Although all of these cases were cited to the Court of Appeal in Hamilton, Locabail was not dealt with in any of the judgments. The other two cases were analysed by Simon Brown LJ as part of his review of the various authorities on Section 51. He concluded at paragraph 48 that, whilst the courts had not clearly laid down a rule that pure funders were generally to be regarded as exempt from s.51 orders, he did not consider that they should ordinarily be held liable. He referred at paragraph 57 of his judgment to "a general presumption against s51 liability in any event" in cases involving pure funders. This was a view with which Lady Justice Hale (as she then was) was "reluctantly persuaded to agree".
27. I note that Simon Brown LJ considered that it was difficult to reconcile Maxwell with Thistleton and regarded the former as clearly prevailing over the latter. He pointed out that Thistleton was a decision about which Phillips LJ had reservations in Murphy "if, indeed, he did not implicitly overrule it – see in particular his reference to a disinterested relative funding 'costs of a claim or a defence that is reasonably advanced' (my emphasis)". In those circumstances, it would not be appropriate for me to reach any conclusion on the basis of the decision of HHJ Hicks QC in Thistleton.
28. If pure funders will not ordinarily be held liable under Section 51, then in what circumstances might that general presumption be displaced? The clearest guidance on that topic comes at paragraph 86 of the judgment of Lady Justice Hale. There she says:

"There must, however, be exceptional cases where it would be quite unjust not to make an order: principally where the litigation was oppressive or malicious or pursued for some other ulterior motive. The fact that it was quite unmeritorious would be powerful evidence of ulterior motive but neither a necessary nor a sufficient criterion in itself."

29. Of course, the position in respect of funders who have a financial interest in the outcome of the litigation is very different. As Lord Brown put it at paragraph 25(3) of his speech in Dymocks:

"Where, however, the non-party not merely funds the proceedings but substantially also controls or at any rate is to benefit from them, justice will ordinarily require that, if the proceedings fail, he will pay the successful party's costs."

This principle, of course, explains why the funders were made the subject of Section 51 orders in Fulton and Philips.

30. Turning now to the facts of the present case, I consider that, on the evidence, the proper starting point is to regard Kiran as a private funder motivated by natural affection for her husband. The Trustee, however, relied on two particular matters in support of her contention that that is not, in fact, the true position, and that she had a financial interest in the outcome of the compromise issue. First, it was said that Kiran is a director of SK Thakrar & Co Ltd (Party 16), and Mr Howard accepted that she was also a shareholder in that same company. Party 16, represented by Mr Sen, argued that there had been a binding compromise. In addition, the Trustee relied on the fact that Kiran, and her children, are the subject of applications in the bankruptcy proceedings in respect of monies and shares which the Trustee claims belong to her, and that therefore Kiran had a direct interest in the argument that a binding compromise had been achieved.
31. As to Kiran's role as a director (and shareholder) in Party 16, it seems to me that that is irrelevant to the private funding that she provided to her husband. I have already made a costs order against Party 16 so, to the extent that Kiran is either a director or a shareholder of that company, she is directly affected by that existing order. I do not consider that it would be appropriate to regard her as having a different status as a funder merely because of her separate role in the running of the limited company. That is a point to which I revert at paragraphs 37-39 below.
32. As to the position in the bankruptcy, it is clear that Kiran is directly affected by the bankruptcy proceedings. However, even taking full account of the recent information that she has provided as to her assets, I accept that she could not fairly be described as wealthy in her own right. Furthermore, it is apparently common ground that the alleged compromise of the Thakrar litigation at £20.1 million would not automatically have resulted in a surplus in the bankruptcy. Thus, whether Kiran had any personal or financial interest in the outcome of the compromise issue is unclear: if the alleged compromise would not necessarily have brought about an end to the difficulties created for Kiran by the bankruptcy (because the bankrupt estate would still have been in deficit), then it is difficult to see how or why the result of the compromise hearing would have made any real difference to her.
33. It would plainly be idle to suggest that Kiran is in precisely the same position as the pure/private funders referred to in Maxwell and Hamilton. She is, after all, directly affected by the bankruptcy proceedings. On the other hand, it seems to me that, in relation specifically to the compromise issue, she is much closer to the position of these pure funders than the interested funders who were the subject of the successful Section 51 applications in Fulton and Philips. It has not been demonstrated that there was a direct financial benefit to her personally if I had concluded that the litigation had been compromised for £20.1 million, which was the particular issue in respect of which the relevant costs were incurred. Even if there was a possible financial benefit to her of a successful compromise, I consider that it might well have been modest.
34. Thus, in relation to the compromise dispute, and the costs that it generated, I consider that it is appropriate to treat Kiran as being in a position at least akin to that of a pure funder. In those circumstances, the usual order would be that the Section 51 application against her would fail. Is there any reason to upset that general presumption?
35. Mrs Giret QC argued that this case was an exception to the usual rule, because the compromise claim was hopeless, and was thus used oppressively and/or pursued for some other ulterior motive. I do not accept that. I have made the point that the compromise application was opportunistic and, if a full legal analysis had been brought to bear on the correspondence at an earlier stage, the Defending Parties would or should have realised that the application was going to fail. But Lady Justice Hale was quick to point out in Hamilton that the fact that the litigation is unmeritorious is not a necessary or sufficient criterion in itself to justify a Section 51 order. Something else is necessary. On the evidence before me I am quite unable to find that the application for a declaration was oppressive or pursued for some other ulterior motive. I also decline to find that in some way the compromise issue demonstrated a lack of bona fides on the part of the Defending Parties or, indeed, Kiran herself. When I ordered that the costs of the compromise issue should be paid by the Defending Parties on an indemnity basis, I made no finding of bad faith, and I expressly referred to the post-CPR authorities which make clear that such a finding is not necessary in order to justify an order for indemnity costs.
36. For those reasons, therefore, I conclude that Kiran's status is at least akin to that of a pure funder and that I should decline to make a Section 51 order against her in any event. The presumption against such an order has not been displaced.

Issue 3: Is The Position Altered As A Result of Kiran's Role As A Company Director/Shareholder?

37. I can deal with this third issue quite shortly. In my judgment, the fact that Kiran is a company director and shareholder in Party 16 was irrelevant both to the compromise proceedings and this Section 51 application. She provided the money to fund her husband as a private individual: as the wife of Subhash, whose conduct lies at the heart of the labyrinthine litigation being dealt with by His Honour Judge Thornton QC. That funding was nothing whatsoever to do with the company, or her position in it. Indeed, it is right to note that the company was separately represented by Mr Sen at the compromise hearing before me. Furthermore, as I have already pointed out, the company is already liable for the costs order that I made against the Defending Parties. In those circumstances I do not consider that Kiran's role in the company has any relevance to the Section 51 application.
38. Support for that proposition, if it were needed, can be found in Metalloy Supplies Ltd (in liq) v MA (UK) Ltd [1997] 1 All ER 418 in which Millett LJ said:

"It is not, however, sufficient to render a director liable for costs that he was a director of a company and caused it to bring or defend proceedings which he funded and which ultimately failed. Where such proceedings are brought bona fide and for the benefit of the company, the company is the real plaintiff. If in such a case an order for costs could be made against a director in the absence of some impropriety or bad faith on his part, the doctrine of the separate liability of the company would be eroded and the principle that such orders should be exceptional would be nullified."

39. Accordingly, I consider that Kiran's interest in and obligations owed to Party 16 are irrelevant to the Section 51 application against her, and do not lead me to alter my view that no such order should be made.

Issue 4: Discretion

40. I have referred above to my decision to refuse the Section 51 application on the ground that Kiran's funding of her husband did not cause the Trustee to incur any costs that the Trustee would not otherwise have incurred but for the funding. In addition I have found that, even if I am wrong as to the causation question, Kiran's position was at least akin to that of a pure funder and that, on the basis of the authorities, the presumption must be that a Section 51 order is not appropriate in her case. On the evidence, there is nothing which would discharge that presumption or lead to the making of a Section 51 order.
41. For completeness, I should say that I would not, in any event, have been minded to exercise my discretion in favour of making the order. Such orders are exceptional: see Symphony Group Plc v Hodgson [1993] 4 All ER 143. Of course, that means 'exceptional by comparison with the ordinary run of cases': see Millett LJ in Globe Equities Ltd v Globe Legal Services Ltd [1999] BLR 232. As he himself put it in Metalloy, the making of a Section 51 order can properly be described as exceptional "since it is rarely appropriate".
42. I do not consider that the present case is one of those rare cases in which it is appropriate to make such an order. As I pointed out in my Judgment on the compromise issue, Glen is a substantial company worth in excess of £30 million. The Trustee has to ensure that the maximum is recovered in the bankruptcy and has obtained freezing orders against Glen in order to advance that process. It was common ground at the compromise hearing that, if there had been a settlement, the £20.1 million would have been paid by Glen. Accordingly, Glen is the most important of the Defending Parties; without Glen's express agreement, this action cannot be compromised on their behalf.
43. In those circumstances, it seems to me that it would be wrong to place into the costs spotlight other Defending Parties who, in all the circumstances of the case, were of considerably lesser importance, particularly in respect of the alleged compromise. Subhash is in that category. Although he commenced one of the two principal elements of this litigation in the first place, and his conduct is at the heart of the fact-finding exercise, he is now bankrupt and is the subject of a number of court orders which he either cannot or will not pay. His wife's decision to fund representation on his behalf in the compromise issue was quite understandable, but it was something of a sideshow, and I am in no doubt that it would be quite unjust to use that funding against Kiran now to justify an order in favour of the Trustee under Section 51.
44. There is one final point that I should like to make which is relevant to the exercise of my discretion. In Hamilton, Maxwell and Thistleton, the funders had each provided funds to allow the funded party to go onto the offensive and mount, respectively, a libel case, a potentially important issue about self-incrimination, and a claim for monies due under a building contract. In other words, in each case, what was being funded was a positive claim that was in the particular interest of the funded party himself. Here, in contrast, it could be said that the compromise issue for which Kiran provided funds on behalf of her husband was a bona fide (albeit misguided) attempt to bring to an end difficult and expensive litigation aimed directly at Subhash and the other Defending Parties, the continuation of which could not, by any stretch of the imagination, be described as being in the interests of Subhash, or any of the others. Even though this attempt involved an application to the court by Glen, in which they were supported by other Defending Parties, I consider that, in the context of the Thackrah litigation as a whole, the application was essentially defensive in nature, not offensive; reactive, not proactive. That is a further factor that leads me to conclude that justice does not require the order sought.

CONCLUSION

45. I conclude that the Trustee would have incurred precisely the same costs, whether or not Kiran had funded her husband's representation at the compromise hearing. There is therefore no causal link between the funding on the one hand, and the costs which are the subject of the Section 51 application on the other. On that ground alone, the application must fail.
46. In any event I consider that Kiran is in a position at least akin to that of the pure funders in the reported cases, where there is a presumption that, unless there is a good reason to do so, no Section 51 order will be made. There is no reason here to depart from that presumption.
47. Further and in any event, in all the circumstances, I would decline to exercise my discretion in favour of making the order sought. The application is therefore refused.

Note 1    [2007] EWHC 271 (TCC)    [Back]