NAP successfully enforced an Adjudicator’s decision and this judgment concerned the costs of its application. The summary judgment application had been refused insofar as it related to the Adjudicator’s fees and expenses and the Judge had directed the execution of the judgment in excess of £65,000 should be stayed, in light of NAP’s financial position.

NAP unsuccessfully sought its costs on an indemnity basis. Although the Judge criticised Sun-Land’s defence, as two parts were abandoned before the hearing, was critical of Sun-Land’s solicitor, and considered it was arguable that Sun-Land’s approach to the defence of the application verged on the borderline of the type of conduct that could attract an indemnity costs award, the fact remained that it had succeeded in resisting NAP’s claim to a significant degree. Therefore, the fair and appropriate order was that NAP should be awarded a proportion of its costs to reflect both the degree of success and the time spent on the issues on which it lost or lost in part. This proportion was 85%.

In relation to the assessment of costs, the judge considered the extent to which some of the individual items were reasonably incurred or were reasonable in amount but also was required to consider the costs by a firm of claims consultant’s. The Judge allowed the claims consultant’s costs and set out the following three propositions at paragraph 20:

(1) Sums paid to a third party incurred solely for the purpose of advancing or assisting with the prosecution or defence of a claim may in principle be recoverable as costs provided that the third party is not doing any acts that only a solicitor can do and/or does not do any act whilst purporting to act as a solicitor.

(2) It does not matter that the work done by the third party, even if it employs non-practising barristers or solicitors to do it, is work of a type commonly done by solicitors.

(3) The costs of a third party engaged in these circumstances may be assessed by the court. To be recovered, they must have been reasonably incurred and be reasonable in amount.