Costs

It was settled law that a non-party costs order could be made against legal representatives, but that, in every case, such an order was exceptional. Generally speaking, the discretion would not be exercised against “pure funders”. However, where a non-party not merely funded the proceedings, but substantially also controlled or at any rate was to benefit from them, justice would ordinarily require that, if the proceedings failed, he would pay the successful party’s costs. The non-party in those cases was not so much facilitating access to justice by the party funded, as himself gaining access to justice for his own purposes, and he himself was “the real party” to the litigation. A solicitor was entitled to act on a conditional fee agreement for the impecunious client who it knew or suspected would not be able to pay its own, or the other side’s costs, if unsuccessful. As far as the other side was concerned, whether the solicitor had negligently failed to obtain after the event insurance to protect his client did