At the court’s discretion: non-party costs orders

• Giambrone emphasises the broad, fact-specific discretion conferred on the court in awarding non-party costs orders.

It is a well-documented fact that the court will only grant a non-party costs order (NPCO) in ‘exceptional’ circumstances. But what does exceptional really mean in the context of a discretionary jurisdiction, where the courts notoriously resist placing excessive reliance on case authorities as precedent?

The High Court’s recent decision in Various Claimants v Giambrone & Law (A Firm) & Ors, AIG (Europe) Limited [2019] EWHC 34 (QB) provides useful guidance for parties seeking NPCOs against indemnity insurers. It also reiterates a familiar message that there is no rulebook or checklist in the exercise of the court’s discretion in awarding a NPCO.

The court’s discretion

The jurisdiction to award a NPCO arises under s 51, Senior Courts Act 1981 (SCA 1981), which states that the costs of and