Barrister examines costs orders against litigation friends and infants

Thu, 04 Jul 2019

Costs lawyer specialist Stephen Goodfellow of No5 Barristers’ Chambers puts the spotlight on the liability of a litigation friend and infants following Barker v Confiànce Ltd and others [2019] EWHC 1401 (Ch).

Mr Goodfellow examined the High Court judgment on June 5, 2019 where Mr Justice Morgan considered the principle as to the circumstances where a litigation friend can be ordered to pay costs and whether costs should be ordered against the infants themselves.

He believes Barker v Confiànce Ltd is an important judgment as it dispels widely held, but misplaced beliefs, that a litigation friend is not liable for costs where they represent a defendant and that an infant litigant cannot be liable for costs unless there is gross misconduct or fraud.

In the main proceedings of Barker v Confiànce Ltd, a settlement was agreed, in respect of the provisions of a trust and sub-trust, with the Trustee (Confiànce) and a test employee beneficiary, who was one of five children. Subsequently, the mother of two of the other children brought an application, as their litigation friend, challenging the settlement and seeking an order that it was not binding on them. 

She was not appointed by the court, but acted without a court order under CPR 21.4(3), which provides that if nobody has been appointed by the court … a person may act as a litigation friend if he/she:

  • Can fairly and competently conduct proceedings on behalf of the child or protected party;
  • Has no interest adverse to that of the child or protected party; and
  • Where the child or protected party is a claimant, undertakes to pay any costs which the child or protected party may be ordered to pay in relation to the proceedings, subject to any right he/she may have to be repaid from the assets of the child or protected party.

In the case, the mother failed to give an undertaking pursuant to CPR 21.4 (3)(c).  Following three hearings, the application was dismissed, and the respondents sought costs against the mother and the two children. 

Initially, a non-party costs order was sought against the mother, however, the court indicated that it was more appropriate to consider an order for costs against the mother on the basis that she was a litigation friend.

The court highlighted that a  litigation friend is not a party to the proceedings (para.22), however, precedent does not indicate that the court will join the litigation friend as a party before making an order against them, even though CPR 46.2 requires non-parties are added to the proceedings for the purpose of costs (para.33). 

Mr Goodfellow said: “Perhaps surprisingly, the court spent little time addressing this apparent inconsistency before proceeding to consider the costs liability of the litigation friend.”

In a thorough analysis, Mr Justice Morgan set out that it was established by case law, including Slingsby v Attorney-General (1916) 32 TLR 364 (Court of Appeal) and (1916) 33 TLR 120 (House of Lords) and Rutter v Rutter [1921] P 136,  that a litigation friend will pay the defendant’s costs for an unsuccessful claim by a child claimant.  Further, he found that, although the case law pre-dated the Senior Courts Act 1981 and the CPR, the court could apply this practice (paras. 29 & 30).  Under section 51(3) of the Senior Courts Act 1981, the court has full power to determine “by whom and to what extent the costs are to be paid”, whilst pursuant to CPR 44.2(4), “In deciding what order (if any) to make about costs, the court will have regard to all the circumstances”.

The court then rejected the argument that CPR 21.4(3) specifically requires a litigation friend for a claimant to give an undertaking to pay any costs, in the absence of which there is no liability.  It was held that the requirement is intended to supplement the general requirements of the CPR and cannot be relied upon to circumvent them. 

Mr Goodfellow added: “I believe that this is a practicable and fair interpretation as otherwise a litigation friend could avoid liability for costs through a deliberate failure to comply with the CPR.”

Mr Justice Morgan also rejected the argument that under CPR 21.4(3), a litigation friend can only be made liable for costs when acting for a claimant, thereby precluded a litigation friend being liable for costs when acting for a defendant. 

When considering whether there was a different rule to be applied where the litigation friend acts for a defendant rather than a claimant, the court analysed the cases of Morgan v Morgan (1865) 11 Jur NS 233 and Vivian v Kennelly (1890) 63 LT 778, which are referred to in Halsbury’s Laws, Vol 10, para. 1420 when stating the proposition that, “A litigation friend is not liable to pay the costs of an unsuccessful defence unless he has been guilty of gross misconduct”. 

Mr Goodfellow commented: “Lawyers will now be advised to warn any clients who are litigation friends that the court was not persuaded that “the principles to be applied at the present time should be regarded as fixed by the approach adopted in Morgan v Morgan” (para.46); rather they are governed by CPR 44.2(4), which requires the Court to have regard to all the circumstances.  Barker v Confiànce Ltd removes any ambiguity regarding whether a litigation friend, if unsuccessful, should expect to pay the costs of the successful party, whether claimant or defendant.

In addition, it was held that if there was a special rule, it would be “a recognition of a difference between a party (acting as a litigation friend) who starts proceedings and a party who is called upon to defend proceedings. In accordance with that possible justification of a special rule, one would therefore ask whether, in a particular case, the party acting by a litigation friend had started the process which led to the costs being incurred.

Accordingly, irrespective of the substantive claim, the litigation friend, by bringing the application, started the proceedings, which led to the cost being incurred and could not benefit from such a rule. 

Mr Goodfellow noted: “This can be seen as a further example of a practicable and fair interpretation of CPR 21.4(3)(c), however, it does risk adding some uncertainty to the general definition of ‘claimant’ and ‘defendant’.”

In conclusion Mr Justice Morgan determined that the court should apply the general principle that the litigation friend is liable for costs, just as the unsuccessful party would normally be required to pay if they had been an adult. 

“The caveat is that the court will have regard to all the circumstances of the case, and it is open to the litigation friend to show that a different order for costs is justified (para.53); perhaps by reference to their conduct and requirement as litigation friend,” added Mr Goodfellow.

The court went on to consider whether the infant claimants in Barker v Confiànce Ltd should be ordered to pay the costs of their unsuccessful application.  It held that the case law was not consistent and does not lay down a general rule, contrary to the commentary in Halsbury’s Laws, Vol 10 at para 1418 & 1420: “[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.” and “[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.”

"The Court stated that this determination was further supported by CPR 46.4(a) & (2), which provides that when a child or protected party is ordered to pay costs, the costs must be the subject of a detailed assessment. This clearly indicates that the court can make an order for costs against a child, although it does not indicate the circumstances in which such an order might be appropriate.

"Accordingly, Mr Justice Morgan held (para.121): ‘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’.

Mr Goodfellow concluded: “It appears that the correct assumption in respect of litigation friends and infant litigants, when considering costs orders, is that they will generally be treated the same as an adult party and not the other way around.”

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