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BAKULA JOBANPUTRA and PARI JOBAN v JAYANT MODI and JOHN MCLEE ROBINSON 
In this case the Court of Appeal considered whether the High Court Master was correct in his decision not to make a non-party costs order against the respondent solicitor. The Court of Appeal held that the Master was entitled to come to the decision he did.
The High Court Proceedings
THE CLAIMANT’S APPEAL
The Claimant’s grounds of appeal were (in summary): (i) that the Master was mistaken in thinking that there would be an investigation into Mr Robinson’s conduct, the findings of the SDT could be relied upon; (ii) the causative effect of Mr Robinson’s conduct was clear; and (iii) unless a non-party costs order is made, the Claimant would have little prospect of recovering her costs.
In response, Mr Robinson’s position was that the Master’s decision should be upheld; he did not control or fund the litigation, he did not gain any financial benefit from it and he gave no evidence in the proceedings. Should the Claimant wish to pursue him, she could do so under a separate cause of action.
Throughout the course of the appeal the Claimant invited the Court to agree that it was correct to order a non-party costs order against a solicitor in circumstances where he certifies a document as authentic, knowing that it was wrongly certified and where he knows that there will be litigation in which that document will be material.
FINDINGS OF THE COURT OF APPEAL
Whilst the Court has a discretion to take into account a number of factors, non-party costs orders are usually made against those who have an interest in the litigation and/or that person manages or funds the litigation. This was not the case in this litigation and, had the Claimant’s appeal been successful, this would have widened considerably the circumstances in which non-party costs orders are made, thereby running the risk of a flood of applications being made against third parties. The Court of Appeal’s approach emphasises that non-party costs orders may only be made in limited circumstances.
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