Mills v Birchall & Anor [2008] EWCA Civ 385 (18 April 2008)

Mills v Birchall & Anor [2008] EWCA Civ 385 (18 April 2008)

The Court of Appeal held that the Chancellor properly exercised his discretion in refusing to make a non-party costs order against the receivers. The case was not outside the ordinary run of cases, there was no impropriety or unreasonableness, the receivers were not the real parties, and the proper remedy for the applicant was to seek security for costs. The absence of an application for security for costs was a significant factor, and there were no grounds to interfere with the Chancellor's decision.

Citation
[2008] EWCA Civ 385
Parties
Appellant/applicant: Peter Mills; Respondent: Robert William Birchall; Respondent: Barry Gordon Gilbertson
Jurisdiction
England and Wales
Judgment Date
18 April 2008
Procedural Posture
Appeal From High Court (chancery Division) / Judgment on Appeal
Outcome
Appeal dismissed
Legal Topics
Non Party Costs Orders, Receivership, Security for Costs, Agency of Receivers, Discretion in Awarding Costs
Civil Procedure Insolvency Costs Non Party Costs Orders Receivership Security for Costs Agency of Receivers Discretion in Awarding Costs

Case Brief

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Parties

Peter Mills

Appellant/applicant

Robert William Birchall

Respondent

Barry Gordon Gilbertson

Respondent

Procedural Posture

Appeal From High Court (chancery Division) / Judgment on Appeal

Legal Issues

  1. 1 Whether a receiver appointed under a bank charge can be ordered to pay the costs of an unsuccessful action brought by an insolvent company at the receiver's direction under section 51 of the Supreme Court Act 1981.
  2. 2 Whether impropriety or unreasonableness is required for a non-party costs order against a receiver.
  3. 3 The relevance of the availability of security for costs in deciding whether to make a non-party costs order.

Ratio Decidendi

The Court of Appeal held that the Chancellor properly exercised his discretion in refusing to make a non-party costs order against the receivers. The case was not outside the ordinary run of cases, there was no impropriety or unreasonableness, the receivers were not the real parties, and the proper remedy for the applicant was to seek security for costs. The absence of an application for security for costs was a significant factor, and there were no grounds to interfere with the Chancellor's decision.

Court Disposition

Appeal dismissed

Orders

  • No order for costs against the receivers; the applicant's claim for costs is refused.