Twigg & Anor. v Kung

The appellants, Twigg & Anor., sued the first respondent, Kung, and the second respondent, McGlynn. Twigg & Anor. sought to appeal the dismissal of their claim against Kung. Kung had also cross-claimed against McGlynn for an indemnity, which was dismissed as a consequence of the primary claim's dismissal. Twigg & Anor. sought leave to appeal against Kung only, while Kung sought leave to cross-appeal against McGlynn. The Court of Appeal granted leave to appeal against Kung but refused leave to cross-appeal against McGlynn. The central issue before the Court of Appeal was the allocation of costs arising from McGlynn's joinder in the appeal proceedings at Kung's instance.

The legal issues before the Court of Appeal concerned the interpretation of rules governing appeals and the costs associated with parties who are neither appealing nor being appealed against, but who are joined to the appeal proceedings. Specifically, the court had to determine whether McGlynn was a party "affected by the relief sought by a notice of appeal" or "interested in maintaining the decision under appeal" in a manner that would justify ordering Twigg & Anor. to pay McGlynn's costs of the appeal.

The Court of Appeal reasoned that McGlynn's involvement in the appeal was solely due to Kung's decision to cross-appeal, which was ultimately refused. As McGlynn was not directly affected by Twigg & Anor.'s appeal against Kung, and Kung's cross-appeal against McGlynn failed, it was unjust to require Twigg & Anor. to bear McGlynn's costs of the appeal. The court applied principles of fairness and proportionality in allocating costs, distinguishing between costs incurred before and after McGlynn's involvement became a point of contention.

The Court of Appeal ordered that the costs order made on 11 July 2002 be set aside. It was ordered that the appellants pay Kung's costs of the appeal, including costs previously ordered to be paid by the Registrar, and also McGlynn's costs up to 11 June 2002. Furthermore, Kung was ordered to pay one half of McGlynn's costs incurred in relation to the appeal after 11 June 2002.