In Baker v Quantum Clothing Group Ltd – Lawtel 11.6.08 there was an application by the appellant for an order that her appeal be allowed to proceed on the basis that the second and third respondents should bear their own costs regardless of the outcome of the appeal. The appeal arose out of a number of claims against clothing manufacturers for compensation for noise-induced hearing loss. The appellant was the only claimant to receive permission to appeal. In light of the wide grounds of her appeal, the second and third respondents sought to be joined to her appeal as respondents, on the basis that they were parties to the wider litigation and would be affected by the appeal and, therefore, were entitled to be joined pursuant to CPR 52.1(3)(e)(i), and in any event, should be permitted to become a party to the appeal as a respondent under CPR 52.1(3)(e)(ii). The problem faced by the appellant was that underwriters were only prepared to cover the first respondent’s costs or, at most, all of the respondent’s costs but limited to £250,000, meaning that unless this order was granted, the appellant would be prohibited from appealing. The Court weighed up the fairness of the order for each party and found that whilst the granting of the order would in parts be unjust to the second and third respondents, not to grant the order would cause a greater injustice. It therefore ruled that the second and third respondents should bear their own costs regardless of the outcome.

The court considered the possibility of a pre-emptive costs capping order despite none of the parties having applied for one. It was held that where there is no application from any party for a capping order, one can not be granted.