Civil procedure — costs — appeal — substitution of appellant where wrongly named by solicitor — limits of solicitor’s warranty of authority — liability for costs — whether indemnity costs appropriate
In a bankruptcy appeal issued in the name of D1 by S, a solicitors’ firm, the Court ordered the substitution of D1 by HB as the appellant (the Order) and, subsequently, struck out the appeal due to HB’s non-compliance with an unless order. P3 and the trustees in bankruptcy (the Applicants) sought costs of the appeal.
- There was no basis to order costs against D1, who was not and should not have been named as a party to the appeal. By the Order, HB was the effective appellant ab initio. (See paras. 4–5.)
- A solicitor did not warrant that his client had the name by which he appeared in the proceedings, but only that he had instructions to act and his client had authorised the proceedings (Nelson v Nelson  1 WLR 233, SEB Trygg Liv Holding AB v. Manches  1 WLR 2276 applied). (See para. 8.)
- Here, notwithstanding S had wrongly named D1 as the appellant, it had been acting on HB’s instructions. Hence, even for pre-substitution costs, HB, not S, was liable, and given HB’s blatant abuse of process, indemnity costs were appropriate. (See paras. 3, 10–12.)
This was an application by the third plaintiff and the trustees in bankruptcy for costs of an appeal in bankruptcy proceedings. The facts are set out in the judgment.