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The impact of potential non-part costs orders

Kevin Shannon examines the impact of potential non-party cost orders againsts solicitors who fund disembursements

23 November 2012

Will a solicitor who pays for the disbursements of an impecunious client under a CFA be liable under a non-party costs order if they lose? The answer is an unsatisfactory “maybe” as recent contradictory decisions mean that both those in favour of imposing liability on the solicitor and those against it can claim the law is in their favour.

After two Court of Appeal cases (Arkin v Borchard [2005] EWCA Civ 655 and Myatt v National Coal Board [2007] EWCA Civ 307) and the recent judgment (November 2011) in Germany v Flatman [2011] EWHC 2945 favoured the imposition of non-party orders the pendulum has swung back the other way with the very recent judgment (28 September 2012) in Tinseltime v Roberts [2012] EWHC 2628 leaving the law in a state of confusion.

Critical distinction

In Flatman the defendants believed the claimants’ solicitors had funded t...

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