In Lingfield Properties (Darlington) Ltd v Padgett Lavender Associates – Butterworths Law Direct 18.11.08 the claim by the Claimant company against the Defendant was dismissed by a judgment delivered on 17 December 2007. On 22 May 2008, the Defendant applied for an order pursuant to CPR r 48.2 that a third party be joined as a party to the proceedings for the purposes of a non-party costs order against him under s 51 of the Supreme Court Act 1981.  

CPR part 48.2 provides: '(1) Where the court is considering whether to exercise its power under section 51 of the Supreme Court Act 1981 [Senior Courts Act 1981] (costs are in the discretion of the court) to make a costs order in favour of or against a person who is not a party to proceedings — (a) that person must be added as a party to the proceedings for the purposes of costs only; …'

It was held that, in all the circumstances, it would not be just to exercise the power under s 51 of the Act in favour of making an order for costs against the third party as he had not been 'the real party' to the claim against the Defendants. The real party to the litigation was the Claimant itself. The Claimant had risked its own assets and had made arrangements for funding the litigation which had not materially depended upon the financial contribution of the third party