Costs-Only Joinder Refused In Favour Of Consolidation

Court Refuses Costs-Only Joinder But Orders Consolidation in Will Dispute

Costs-only joinder CPR 46.2 allows parties to join non-parties to litigation solely for the purpose of making future costs orders against them. This procedural tool is particularly relevant in professional negligence cases, but courts apply strict criteria when determining whether such joinder is appropriate.

IVEY V LYTHGOE & TRUST INHERITANCE LIMITED [2025] EWHC 2325 (Ch)

In Ivey & Ors v Lythgoe & Anor [2025] EWHC 2325 (Ch) the High Court determined an application concerning the involvement of a non-party will-drafter, Trust Inheritance Limited, in probate proceedings. The claimants sought either to join the respondent as a costs-only party under CPR 46.2 to facilitate a future non-party costs order under section 51 of the Senior Courts Act 1981, or to consolidate the probate claim with a separate County Court negligence claim against the respondent. The court refused the application for joinder as a costs-only party, distinguishing authorities like Re Bimson and applying the principles from Deutsche Bank AG v Sebastian Holdings Inc. It held the summary procedure was inappropriate where the respondent actively contested the negligence allegations, as this would require a full trial on liability, causation, and quantum. The court granted the alternative application, ordering consolidation of the two claims under CPR 3.1(2)(h) as they arose from the same factual matrix, a course not opposed by the respondent. Following consolidation, the court exercised its power under CPR 3.1(2)(o) to order the respondent to attend a scheduled mediation, but also mandated the claimants to serve their particulars of claim a month prior to provide sufficient detail. The consolidated proceedings were stayed pending the mediation’s outcome.

This case is very different. The will writers have not accepted liability for negligence, and have not agreed to an order against them under section 51. If this probate/rectification claim were tried out and the claimants were unsuccessful, it would simply not be appropriate to engage the summary procedure provided for by section 51, so long as the respondent resisted liability. That could only be determined after a trial of the negligence claim, including the important questions of causation and quantum of loss. And, if it would not be appropriate to engage the summary procedure after the conclusion of this claim, it is even less appropriate to do so before that conclusion.

Citations

Aiden Shipping Co Ltd v Interbulk Ltd [1986] AC 965 (HL) The court may order costs against a non-party under section 51 of the Senior Courts Act 1981 where that third party has sufficiently close involvement in the litigation to justify being treated as akin to a party for costs purposes. Deutsche Bank AG v Sebastian Holdings Inc [2016] EWCA Civ 23 A non-party who has a close connection with the litigation may be bound by findings of fact from the main trial under the court’s summary costs jurisdiction, which obviates the need for separate evidential proceedings against that non-party. Re Bimson (Deceased) [2010] EWHC 3679 (Ch) A non-party costs order may be made against a solicitor who negligently drafted a will, where they do not object to joinder and accept the appropriateness of the order in light of their professional failings. Gerling v Gerling [2011] WTLR 1029 (Ch) A will-drafter may be joined as a non-party for costs purposes where their admitted drafting error caused the litigation, and they do not resist the making of a section 51 order. Pead v Prostate Cancer UK [2023] EWHC 3224 (Ch) A non-party costs order may be appropriate where the professional negligence of a will-drafter leads to avoidable probate litigation and where there is no dispute over joinder or liability. Marley v Rawlings (No 2) [2015] AC 157 (SC) A solicitor’s insurer may fund probate litigation caused by a drafting error, and a non-party costs order may not be required where liability and indemnity have been accepted for the drafting mistake. Churchill v Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416 The court may compel parties to engage in alternative dispute resolution where appropriate, reaffirming its overarching case management powers even in the absence of express consent. Wormleighton v Cape Intermediate Holdings Ltd [2024] EWHC 1971 (KB) Once actions are consolidated, they proceed as a single claim, enabling more efficient case management, including the application of rules and orders uniformly across all joined parties.

Key Points

A non-party costs order may only be sought after the non-party has been added to the proceedings for costs purposes and has been given a reasonable opportunity to attend a hearing at which the court considers the matter further. [13]
The summary jurisdiction under section 51 of the Senior Courts Act 1981 is available only where the non-party has had a sufficiently close connection with the litigation that it would not be unjust to make them liable for costs without a full trial of the issues. [12, 18]
The test for exercising the section 51 jurisdiction includes whether the non-party was so closely involved in the litigation that they may properly be treated as if they were a party, such that it is not unjust to bind them to the findings of fact in the main action. [12, 18]
Where a non-party contests liability in relation to the conduct giving rise to the main proceedings, and issues such as breach, causation, and loss require full determination, a non-party costs order under section 51 will not normally be appropriate without trial of the substantive issues. [20]
Consolidation of related proceedings permits the court to treat the claims as a single set of proceedings, which in turn enables the application of procedural powers such as compelling participation in mediation under CPR 3.1(2)(o). [16, 22]

"And this depends on whether the non-party 'was so closely involved in the litigation that there was no injustice in adopting a summary procedure for dealing with the [section 51] application and holding [the non-party] bound by the findings of fact made by the judge in the main action'."

Key Findings In The Case

The respondent, Trust Inheritance Limited, was not joined as a costs-only party under section 51 of the Senior Courts Act 1981 because it denied liability and there had not yet been a determination in the main probate/rectification claim; accordingly, the court found that the case did not justify the exercise of summary costs jurisdiction at this stage [18–20].
The claimants had not yet made any application against the respondent for a non-party costs order under section 51, and the court held that making such an application would only be appropriate in circumstances where the main claim had been decided, and the respondent’s role was sufficiently close to justify summary treatment for costs purposes [17–18].
Because it was disputed that the respondent caused any loss through negligence, and breach, causation, and quantum of loss had not yet been tried, the court held that any consideration of liability for costs by the respondent would require resolution through substantive proceedings rather than the summary route of a non-party costs application [20].
The court found it appropriate to consolidate the probate/rectification claim and the negligence claim against the respondent under CPR rule 3.1(2)(h), as this would enable all issues—including costs liability—to be considered in one set of proceedings, thus allowing for procedural steps such as ordering participation in mediation [22].
The court ordered the stay of the consolidated proceedings pending a mediation scheduled for 17 October 2025 and found that it was appropriate to compel the respondent, once a party, to participate in the mediation under CPR 3.1(2)(o), ensuring that the costs implications of all claims could be explored collectively before any trial [26].

"I consider that this tripartite litigation cries out for mediation. There is no new law involved, and the essential disputes of fact are both clear and not numerous. The important documents have already been disclosed. The value of the claims will quickly be exceeded by the costs of a trial. The best chance of resolving the matter will come earlier, when fewer costs have been incurred, compared to later."

The High Court’s decision in Ivey & Ors v Lythgoe & Anor [2025] EWHC 2325 (Ch) demonstrates the narrow circumstances in which costs-only joinder CPR 46.2 is appropriate, particularly where non-parties actively contest liability for negligence.

Background to the Costs Application

The claimants challenged two wills of their deceased uncle, claiming he died intestate or alternatively seeking rectification. Their case centred on allegations that Trust Inheritance Limited (the will-writing company) had negligently implemented the deceased’s 2009 will instructions, removing not just one beneficiary as requested but also the deceased’s own family members.

The claimants had issued separate negligence proceedings against Trust Inheritance in the County Court but had not served particulars of claim. They then applied to either join Trust Inheritance as a costs-only party to the probate proceedings under CPR 46.2, or alternatively to consolidate the two sets of proceedings.

The Costs-Only Party Application

The claimants sought to join Trust Inheritance as a costs-only party to facilitate a future non-party costs order under section 51 of the Senior Courts Act 1981. They argued the rectification claims arose directly from Trust Inheritance’s negligence and that it was just and reasonable for the company to bear the associated costs.

The claimants cited authorities including Re Bimson, Gerling v Gerling, and Pead v Prostate Cancer UK where non-party costs orders had been made against solicitors for will drafting errors.

Trust Inheritance opposed costs-only joinder, arguing that the summary procedure for non-party costs orders was inappropriate where it actively contested allegations of negligence requiring a full trial on breach, causation, and quantum.

The Court’s Costs Analysis

HHJ Paul Matthews refused the costs-only joinder application, applying the principles from Deutsche Bank AG v Sebastian Holdings Inc [2016] EWCA Civ 23. The court emphasised that summary procedure under section 51 is only appropriate where the non-party has “a sufficiently close connection to the litigation such that it would not be unjust to bind them to the findings of fact made in the main action.”

The judge distinguished the cited authorities on the basis that in those cases, the solicitors had not resisted the applications. Here, Trust Inheritance contested liability, meaning complex issues of negligence, causation, and loss would require a full trial.

The court held it would be inappropriate to engage the summary jurisdiction before conclusion of the probate claim, stating: “if it would not be appropriate to engage the summary procedure after the conclusion of this claim, it is even less appropriate to do so before that conclusion.”

Consolidation as Alternative

Instead, the court granted the alternative application for consolidation under CPR 3.1(2)(h). Both claims arose from the same factual matrix and Trust Inheritance did not oppose consolidation. The effect was that Trust Inheritance became a party to the single set of consolidated proceedings to be managed in the High Court.

Following consolidation, the court exercised its power under CPR 3.1(2)(o) to order Trust Inheritance to attend mediation scheduled for 17 October 2025. However, recognising Trust Inheritance’s need for detail, the court ordered the claimants to serve particulars of claim in the negligence action by 17 September 2025, giving a month to prepare for mediation.

Practical Implications for Solicitors

This decision clarifies when costs-only joinder is appropriate versus consolidation where separate proceedings exist. The court’s analysis reveals several key principles:

Costs-only joinder requires uncontested liability: The summary procedure under section 51 works where non-parties do not seriously contest their involvement. Where liability is actively disputed, the full trial process is necessary.

Timing matters for costs applications: Courts will not engage summary costs jurisdiction before the underlying claim concludes, particularly where complex issues of causation and quantum require determination.

Consolidation offers broader remedies: Where separate proceedings exist against the same non-party, consolidation may achieve practical objectives (such as mediation orders) more effectively than costs-only joinder.

Documentary requirements for mediation: Even where courts order mediation, parties must have sufficient detail about claims against them to participate meaningfully.

The decision reinforces that section 51 applications work best where non-parties acknowledge their role in causing the litigation costs, rather than where substantive disputes about professional negligence require resolution through the full trial process.

Non Party Costs Orders | Court Of Appeal Decision

Entitlement to costs: Costs orders in favour of or against non-parties – Guidance on circumstances for non-party costs orders, citing key authorities like Dymocks Franchise Systems and Arkin v Borchard Lines
Costs only proceedings: The application under CPR Part 8 – Procedural guidance on costs-only proceedings under CPR Part 8, relevant to the application process mentioned in Ivey v Lythgoe
Costs only proceedings: Obtaining the order for costs – Details the procedural requirements for obtaining costs orders in costs-only proceedings, including CPR 46.14 provisions
CPR 38.6: Discontinuance And Costs – The Legal Principles – Analysis of costs principles following discontinuance, relevant to consolidation alternatives and costs discretion under CPR 44.2
Applications concerning misconduct or wasted costs: Personal liability of legal representatives for costs – wasted costs orders – Covers personal liability of legal representatives for costs, relevant to professional negligence context