Landmark Appeal on Non-Party Costs Orders

In a landmark ruling, HF, instructed by esure, have successfully defended an appeal, upholding a Non-Party Costs Order. The decision cements HF’s strategy in recovering costs on behalf of their clients, from credit hire organisations.

The Case

Following a road traffic collision in February 2019, the Claimant entered into an agreement with Kindertons (a credit hire organisation “CHO”) to hire two replacement vehicles (a Jaguar and, then a Mercedes) at £345 per day. During an initial call, a representative from Kindertons encouraged the Claimant to ignore any intervention calls from esure.

esure refused to pay the claim and so the Claimant and his wife, both issued court proceedings in September 2019. The claim, which included personal injury, amounted to around £20,000 with nearly £17,000 being for credit hire and repairs.

In August 2020, His Honour Judge Berkley KC dismissed the claims and found both Claimants to be fundamentally dishonest. Absent payment from the Claimants for esure’s costs of £12,000, HF were instructed to apply for a Non-Party Costs Order (NPCO) against Kindertons.

Following a reserved judgment in March 2023, Mr Recorder Gallagher decided that it was just in all the circumstances that Kindertons pay 80% of esure’s costs. Kindertons appealed that decision.

The Appeal

HF’s arguments were focused on three key aspects:

1. Kindertons had a very strong financial interest in the outcome, more so than the Claimant
2. Kindertons had exercised control over the claim
3. Costs had been incurred as a result of Kindertons’ involvement

Financial Interest

In common with CHOs generally, Kindertons stood to gain substantially from the claim brought in the Claimant’s name. They involved themselves voluntarily and enthusiastically in the claim and that involvement was a choice made in the expectation of profit specifically related to the legal proceedings to follow. As stated by Ritchie J in Amjad v UK Insurance Limited [2023] EWHC 2832 (KB):

“The CHC has a far stronger interest in the success of the CHC charges claim because all the money awarded will end up with the CHC”

Exercising Control

The terms of the hire agreement signed by the Claimant tied him into bringing a claim and continuing to co-operate throughout proceedings or face serious financial consequences. In agreeing with HF’s submissions, Mr Justice Turner stated:

“It matters little, if anything, that such consequences were not, in the event, visited upon. It is the threat and not the execution of repercussions which forms the usual basis for control.”

Costs

Kindertons exercised a degree of control over the most valuable part of the Claimant’s claim. In this case, there was a specific intention to prevent esure’s attempts to limit its exposure to the hire claim and potentially reduce Kindertons’ profits. Agreeing with HF, Mr Justice Turner was satisfied that by ordering Kindertons to pay 80% of the costs, the Judge exercised his discretion appropriately to reflect the proportionate benefit it stood to obtain if the claim for hire charges succeeded.

“An attempt mathematically to calculate on a “but for” basis of causation would simply not have reflected the unfairness of allowing Kindertons a free ride on the coat tails of the Claimant’s claim.”

Commentary

Graeme Mulvoy, Partner at HF: “This is a significant win for insurers. For a while, CHOs have been arguing that a test laid down by the Supreme Court (XYZ v Travelers Insurance Co Ltd [2019] 1 W.L.R. 6075) was one that lower courts should adopt. Mr Justice Turner has brought an end to this debate, commenting that Lord Briggs was not intending to lay down any general guidance on all NPCO applications.

It is further pleasing that Mr Justice Turner agreed with us that if CHOs voluntarily assume risk (in this case Claimants being dishonest), they cannot then hide behind that to escape any consequences.

By the very nature of their business models, CHOs should know that they are at risk of NPCO applications – not that any warning is needed, but it’s expressly stated in the Civil Procedure Rules. It is our intention to continue to recover our client’s costs from CHOs on all appropriate cases.”

Andrew Nixon, Fraud Operations Manager, esure: “This is an extremely welcome outcome. Not only have we been successful in defending a fraudulent claim, but the cost of us doing that has been recovered from those who stood to profit the most. It was disappointing that the Claimant had been advised to ignore our calls and this should act as a reminder that those actions have consequences.”