Caboche v England (No.3) No. Scgrg-93-92516 Judgment No. S6790

The case of Caboche v England (No.3) involved the liquidator of Southern Equities Corporation Ltd applying for an order that Ms Caboche pay his costs on a solicitor and client basis. The application followed Ms Caboche's failure to comply with an earlier court order to produce certain documents. The matter was heard by Debelle J, who considered various factors before determining the appropriate basis for the costs order. The primary issues revolved around whether Ms Caboche's actions warranted a departure from the usual rule that costs are paid on a party and party basis, and if so, what factors should be considered in making this decision.

The court examined several factors to determine whether Ms Caboche's case was unmeritorious or hopeless, which could justify a costs order on a solicitor and client basis. These factors included Ms Caboche's failure to challenge the order for examination despite a previous attempt, her failure to produce specific documents as previously undertaken, and the lack of any proper objection or explanation for her non-compliance. The court noted that Ms Caboche had re-litigated issues already determined against her in earlier litigation and had failed to object to the liquidator's application within a reasonable time frame. Additionally, the late and eleventh-hour nature of Ms Caboche's application suggested an attempt to delay the proceedings.

Based on these findings, Debelle J concluded that Ms Caboche's case was indeed hopeless and unmeritorious, and that proper consideration would have revealed this from the outset. The court ruled that an order for costs on a solicitor and client basis was appropriate, emphasizing that such orders should provide fair recompense to the successful party and not be used as a penalty. The court also addressed the timing of the costs application, noting that it was made at an extremely late stage and that proper consideration of the matter would have led to the conclusion that the case was hopeless.

The final orders included that Ms Caboche pay the liquidator's costs on a solicitor and client basis, covering various applications and the appeal, and that she would not recover her costs for the application for an extension of time to appeal. The court also set a specific commencement date for the appeal period.