COSTS AGAINST CHILDREN AND LITIGATION FRIENDS: COURT HAS A DISCRETION TO ORDER COSTS AGAINST CHILD LITIGANTS

In  the judgment today in Barker v Confiànce Ltd & Ors [2019] EWHC 1401 (Ch) Mr Justice Morgan considered whether costs could be ordered against child claimants and/or their litigation friend. He found that no special principles apply to prevent a costs order being made. The court must consider all the circumstances of case.

“I therefore conclude that there is no general rule that the court will not make an order for costs against a child unless they have been guilty of fraud or gross misconduct. Instead, as always, the general rule is that the court must consider all of the circumstances of the case.”

THE CASE

A number of claimants (including several child claimants) were involved in a action.  Two of the children made an application which was dismissed. The judge then considered the issue of who should pay the cost of that application.  The respondents to the action argued that the costs should be paid by the litigation friend, some of the respondents sought costs from the children.  The litigation friend in this case had not given the normal undertaking to pay costs.

PAUCITY OF SOURCES

The judge noted the paucity of material on the issue of whether cost orders could be made in these circumstances.

  1. These issues of principle are not discussed in the White Book; nor do they appear to be covered in the standard practitioners’ works. They are dealt with in Halsbury’s Laws, 5th edn., vol 10 (2017), Children and Young Persons but some of the submissions made to me challenged the way the principles were there described.

LIABILITY OF A LITIGATION FRIEND TO PAY COSTS

The judgment contains a lengthy discussion of the law relating to the liability of a litigation friend to pay costs.  The judge rejected an argument that the litigation friend was only liable to pay costs in cases of “gross misconduct”

 

  1. Having reviewed the authorities referred to in Halsbury’s Laws, Vol 10, there is really only one case (Morgan v Morgan) which provides any support for the proposition that the court will not make an order for costs against the litigation friend of a child defendant in the absence of gross misconduct. Further, the many cases I referred to earlier which described the position of a litigation friend effectively treated the litigation friend as the relevant person (rather than the protected party) when the court considered the question of costs. The reasoning in those cases can readily be applied whether the litigation friend acts for a claimant or for a defendant. Yet further, under the rules of the CPR in relation to costs, although one has regard to all the circumstances of the case, claimants and defendants are generally treated in the same way.
  2. Mr Saoul submitted that CPR 21.4(3)(c) showed that a litigation friend can only be made liable for costs when acting for a claimant and that precluded a litigation friend being liable for costs when acting for a defendant. I do not accept that submission. I consider that the specific requirements of CPR 21.4(3)(c) supplement the general principles which otherwise apply and do not detract from them.
  3. It could be said that it might sometimes be appropriate to distinguish between a case of a child claimant (acting by a litigation friend) who starts proceedings and a case of a child defendant who needs advice as to whether to defend the proceedings and where a litigation friend is appointed to assist the child defendant. However, a possible distinction of that kind would not justify the adoption of an inflexible general rule of the kind stated in Halsbury.
  4. I am not persuaded that the relevant principles to be applied at the present time should be regarded as fixed by the approach adopted in Morgan v Morgan. It is far from clear that the authorities did establish the existence of such a general rule in the past. Further, the position at the present time is governed by CPR 44.2(4) which directs the court to have regard to all the circumstances. If a distinction between a child claimant acting by a litigation friend and a child defendant so acting is considered to be a relevant distinction in a particular case then the court will have regard to that distinction when it considers all the circumstances of the case. But that does not mean that the court must apply an inflexible general rule.
THE RELEVANT CRITERIA WHEN A LITIGATION FRIEND IS ORDERED TO PAY COSTS
    1. When considering whether to make an order for costs against a litigation friend, who has acted for an unsuccessful child party, the court should apply the general approach that, as regards costs, the litigation friend is expected to be liable for such costs as the relevant party (if they had been an adult) would normally be required to pay. The governing rule is that the court has regard to all the circumstances of the case and it is open to the litigation friend to point to any circumstance as to their involvement in the litigation which might justify making a different order for costs from that which would normally be made against an adult party.
Orders for costs in favour of a litigation friend
    1. So far, I have focussed on the circumstances in which a litigation friend may be held to be liable for costs. It is also necessary to consider briefly the circumstances in which a party acting by a litigation friend may be entitled to recover costs. I will only deal with this briefly as there was no real argument about this matter. It is nonetheless a relevant topic because I have before me applications for costs in favour of Euan at a time when he acted by his litigation friend Ms Meek and later when he acted by his litigation friend Deborah Barker.
    2. The position appears to be that a child or protected party who acts by a litigation friend and who would, applying the usual principles as to costs, be entitled to an order for costs in his favour, will be entitled to an order which makes the paying party pay the costs incurred by the litigation friend. It is not open to the paying party to say that as the party entitled to recover costs was a child or a protected party, they did not incur any costs because they did not retain the solicitors who were instead retained by the litigation friend.
How should the discretion as to costs be exercised?
    1. Mr Saoul submitted that, quite apart from the fact that Ms Glover was (only) a litigation friend for her two children, there were good reasons why the court should not make any order for costs against her. He relied on four matters in particular. He submitted that:
i) the conduct of the other parties in relation to the exclusion of Tom, Freya and Ms Glover from the main proceedings brought by Mr Barker and from the hearing before Asplin J was such that the court should not order Ms Glover to pay any of the costs of any of the other parties;
ii) when the application of 27 June 2017 was made it was initially “legally sound” and it was not until 30 July 2018, when the Supreme Court refused permission to appeal against the decision of the Court of Appeal dated 8 December 2017 (in the negligence proceedings which Mr Barker had brought against Mr Baxendale-Walker), which reversed the decision of Roth J dated 23 March 2016, that the position changed in a way adverse to the success of the application;
iii) Confiànce should not have its costs because it should not have incurred them but instead it should have remained entirely neutral on the application of 27 June 2017;
iv) Ms Glover would suffer hardship if an order for costs were made against her.

THE EXERCISE OF THE DISCRETION IN THE CURRENT CASE: THE LITIGATION FRIEND

The judge considered the circumstances of the case and found it reasonable to make an order for costs against the litigation friend.  He specifically rejected an argument that costs should not be awarded against the litigation friend because it would cause her hardship.

“Hardship
  1. Mr Saoul’s next submission was that an order for costs against Ms Glover would cause her great hardship. He made that submission on the basis that the jurisdiction I was exercising when awarding costs against Ms Glover was the jurisdiction to make a non-party costs order where, he submitted, the matters I could take into account when deciding to make such an order could include the question of hardship. However, at this stage, I am not exercising any special jurisdiction to make a non-party costs order but I am instead exercising the normal jurisdiction to award costs against an unsuccessful party and, in effect, treating a litigation friend for a party as in the same position as that party. In that context, the court does not normally decline to order costs against an unsuccessful party on the ground that such an order would cause hardship to that party. Mr Saoul did not show me any rule or any authority to support any other approach.”

THE LIABILITY OF THE CHILDREN FOR COSTS

The judge found that the court had a power to order costs against the child claimants, however he declined to exercise that discretion on the facts of this case.

    1. Confiànce and Euan ask for orders that their costs be paid by Tom and Freya [the two children]. Mr Barker and Ms Meek do not ask for orders for costs against Tom and Freya.
    2. Tom and Freya made the application of 27 June 2017. If they had been adults, I do not see why I could not make an order that they pay the costs of their unsuccessful application. Although they were never formally made parties to the main proceedings, I do not see why that would prevent the court from making an order against them in respect of the costs of their failed application. The question therefore is: does it make a difference that they were children at all times?
    3. Halsbury’s Laws, Vol 10 at para 1418 states:
“[a] child claimant is not liable personally for the costs of legal proceedings unless, after attaining full age, he elects to continue the proceedings or obtain an order for their discontinuance.”
    1. Halsbury’s Laws, Vol 10 at para 1420 states:
“[a] child defendant has not usually been ordered to pay costs unless he has been guilty of fraud; but on a petition for divorce, a child respondent or co-respondent may be condemned in costs.”
  1. However, the cases do not present a clear or a coherent picture.
  2. In Turner v Turner (1725) 2 Strange 708, an infant, acting by his next friend, commenced a probate action which failed. The Lord Chancellor (Lord King) said that no case had been cited where an infant plaintiff had been obliged to pay costs either at law or in equity and he then referred to two cases where no order for costs was made against an unsuccessful infant plaintiff.
  3. I have already referred to Vivian v Kennelly (1890) 63 LT 778 where an order for costs was made against an infant defendant (and against her guardian ad litem).
  4. In Brockelbank v Brockelbank and Borlase (1911) 27 TLR 569 which was a divorce case where the co-respondent was an infant, the co-respondent was ordered to pay the petitioner’s costs. The co-respondent did not have a guardian ad litem. This case was followed in Quinn v Quinn [1920] P 65, another divorce case where costs were ordered against an infant respondent who did not have a guardian ad litem.
  5. In Slingsby v Attorney-General (1916) 32 TLR 364, the Court of Appeal ordered costs against the infant petitioner and his guardian ad litem. In the same case, the House of Lords made an order for costs against the guardian ad litem alone: see (1916) 33 TLR 120.
  6. There have been a number of cases where an infant was found liable for wrongdoing and was ordered to pay the costs: these cases were considered in Woolf v Woolf [1899] 1 Ch 343. However, unlike as in Woolf v Woolf, there is no suggestion that Tom and Freya are liable for any wrongdoing and, accordingly, that case is not applicable here. The question then is whether the other cases to which I have referred lay down a general rule and, if so, whether it still applies since the coming into force of the CPR.
  7. The earlier cases I have cited are not consistent on the question as to whether the court has a general discretion to make an order for costs against an unsuccessful child litigant. I consider that the above cases considered together do not establish the propositions in paras. 1418 and 1420 of Halsbury’s Laws, vol 10. They do not establish that the court cannot make an order for costs against an unsuccessful child claimant. Nor do they establish that the court can only make an order for costs against an unsuccessful child defendant if he has been guilty of fraud. The earlier cases contain examples of orders for costs being made against both child claimants and child defendants. The earlier cases also provide examples of orders for costs being made against child litigants even where they had litigation friends.
  8. As to the position under the CPR, I referred earlier to CPR 21.4(3)(c) which requires a litigation friend for a claimant to undertake to pay “any costs which the child or protected party may be ordered to pay in relation to the proceedings”. That rule does not spell out the circumstances in which a child or protected party will be ordered to pay costs but it certainly does not suggest (as per Halsbury’s Laws, Vol 10) that there is a general rule that a child who is an unsuccessful claimant will not be ordered to pay costs. CPR 46.4 provides that when a child or protected party is ordered to pay costs, the costs must be the subject of a detailed assessment. That rule shows that the court can make an order for costs against a child but, I accept, it does not indicate anything as to the circumstances in which such an order might be appropriate.
  9. I therefore conclude that there is no general rule that the court will not make an order for costs against a child unless they have been guilty of fraud or gross misconduct. Instead, as always, the general rule is that the court must consider all of the circumstances of the case.
  10. In some cases, the court might take the view that it is pointless to make an order for costs against children on the ground that they have no assets with which to meet such a liability. It was not argued in this case that it would be pointless to make orders for costs against Tom and Freya.
  11. I was not given any evidence as to Tom and Freya’s awareness of, and views as to, this litigation. I do not even know if they are aware that the court is now being asked to make orders for costs against them. I was told that the solicitors and counsel instructed by Ms Glover are acting for Tom and Freya. However, there is a potential conflict between Ms Glover and the two children in that Ms Glover may wish to be indemnified by them in relation to her liability for the costs of the application of 27 June 2017 and Tom and Freya may need independent advice as to whether to resist such an indemnity.
  12. I have been given very little information as to Tom and Freya’s circumstances. I know they were born in July 2001 and will soon be 18. They were nearly 16 when the application of 27 June 2017 was issued. I note from the Twin Benefits proceedings that Tom and Freya executed assignments of their rights in relation to this dispute to Mr Baxendale-Walker on 18 December 2015 and 19 January 2016 but I do not know the circumstances in which they did so.
  13. In her witness statements, Ms Glover gave some limited information about Tom and Freya. She referred to them both as being vulnerable and she provided further detail in support of that statement. It appears that one of the children is much more vulnerable than the other. The impression one gets from Ms Glover’s various witness statements is that the decision to bring the application of 27 June 2017 was made by her alone. Neither Tom nor Freya made any witness statement in connection with the application of 27 June 2017.
  14. The choices presented to me are to make orders for costs (in favour of Confiànce and Euan) against Tom and Freya in addition to orders for costs against Ms Glover or to decline to make orders for costs against Tom and Freya. I am not asked to consider whether Ms Glover should be entitled to an indemnity from Tom and Freya although I can see that there may be considerable scope for argument about that. Of course, if Ms Glover were entitled to an indemnity from Tom and Freya, that might be relevant to whether the court should make orders for costs which are directly enforceable against them by Confiànce and Euan.
  15. I have considered whether, in order to avoid the possibility of injustice to Tom and Freya, I should adjourn the applications for costs against them until they are 18 and can be separately represented and when I can be told more about their circumstances and their knowledge of the litigation which was brought in their name. However, I am asked to make my decision based on the material before me.
  16. On that material, I consider that the risk of injustice is greater if I make orders for costs against Tom and Freya than it is if I leave Confiànce and Euan to the benefit of the orders for costs which I will make against Ms Glover. On the material before me, it seems likely that the application of 27 June 2017 was brought by Ms Glover of her own initiative in circumstances where Tom and Freya had no ability to control or influence the course of that application. Tom and Freya have gained nothing from the application. Accordingly, I will not make orders for costs against Tom and Freya personally.