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Heron v TNT (UK) Ltd & Ors [2013] EWCA Civ 469 - 02/05/13


Application by employers' insurers for a non-party costs order against solicitors acting for an employee in a personal injury claim without after the event (ATE) insurance.

Held: A non-party costs order is exceptional and fact-sensitive. Such an order will be justified were the non-party becomes a real party to the litigation, has a principal interest in its outcome and is acting primarily for their own sake (Dymocks Franchise Systems (NSW) Pty Ltd v Todd [2004] UKPC 39). It is not sufficient that an act of negligence by a solicitor in the conduct of litigation results in an opposing party incurring costs which might not otherwise have been incurred.

In the present case, although the solicitors were potentially liable to their client for any costs payable to the employers' insurers, a failure to obtain ATE insurance in itself was not sufficient to demonstrate that the firm became a real party to the litigation.