In Equitas Ltd and another v Horace Holman & Company Ltd and another – Butterworths Law Direct 3.10.08 the Commercial Court was faced with a situation where the Claimant sought an order for the payment of costs by a non-party.

It held that such an order would always be exceptional. It would be even more exceptional for an order for the payment of costs to be made against a non-party where, as here, the applicant had a cause of action against the non-party and could have joined him as a party to the original proceedings. Even if the applicant could provide a good reason for not joining the non-party against whom he had a valid cause of action, he should warn the non-party at the earliest opportunity of the possibility that he might seek to apply for costs against him. At the very least, that would give the non-party an opportunity to apply to be joined as a party to the action. The fact that the Claimant in this case had not warned the third party that he might seek a costs order against it was held to be particularly relevant to the decision to refuse to make the order.