COSTS — Party/Party — Costs incurred by non-party — plaintiffs commence proceedings to enforce rights of burial in an exclusive section of the first defendant’s cemetery that is set aside for the burial of orthodox and practising members of the Jewish faith — plaintiffs unsuccessful in the principal proceedings in obtaining the requested orders for burial — the first plaintiff is impecunious and the second plaintiff was outside the jurisdiction when proceedings were commenced — the first and second defendants seek orders against the respondent,/non-party on the basis that the non-party was the real impetus behind these proceedings.
COSTS — Party/Party — Bases of quantification — costs on an indemnity basis sought by the First and Second Defendants — whether a basis for indemnity costs established — whether a specified gross sum should be fixed instead of assessed costs under Civil Procedure Act s 98(4)(c).
Quick Take
1A non-party who signs the costs agreement with solicitors, is described as 'the client', gives instructions, advances funds and actively drives proceedings may be ordered to pay the substantial majority of the successful parties' costs, even where a nominal plaintiff also bears some responsibility for authorising the proceedings.
2A plaintiff who lends their name to proceedings and expressly accepts costs risk in communications with solicitors cannot escape a costs order by asserting the litigation was wholly driven by a non-party.
3Indemnity costs are not warranted merely because a non-party frustrated alternative dispute resolution or restricted communication between parties, where the proceedings were conducted efficiently and the defendants did not deploy available procedural mechanisms to compel engagement with ADR.
