Costs Orders Against Litigation Friends | Court of Appeal Decision

Litigation Friend

In June 2019 Mr Justice Morgan examined a long line of authority ranging in date from 1727 to 1921 to determine important issues as to the circumstances in which litigation friends can or should be ordered to pay other parties’ costs, and where orders for costs might be made in their favour.

Our analysis of Mr Justice Morgan’s decision can be found here.

That decision insofar as it related to the determination of a litigation friend’s potential costs liability has now been overturned by the Court of Appeal:

“On the basis of the cases of which he was aware, the Judge observed in paragraph 43 of the Costs Judgment that there was “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”. The Judge was unaware, however, of Reynolds v Mead and Hooper v Mackenzie. Those decisions seem to me to confirm that a defendant’s guardian ad litem would not be required to bear costs unless he had been guilty of gross misconduct”

The Court has confirmed the position on the law as to the presumed general liability of litigation friends for costs, and in particular the liability of a defendant’s litigation friend:

i) At any rate where a litigation friend has not previously given an undertaking to pay the costs at issue, the power to make an order for costs against a litigation friend derives exclusively from section 51 of the 1981 Act;

ii) When deciding whether an order should be made against a litigation friend under section 51, the “ultimate question” is “whether in all the circumstances it is just to make the order”;

iii) It will typically be just to order a claimant’s litigation friend to pay costs if such an order would have been made against the claimant himself had he not been a child or protected party, but it remains the case that the Court is exercising a discretion and entitled have regard to the particular circumstances;

iv) There is no presumption that a defendant’s litigation friend should bear costs which the defendant would have been ordered to pay if not a child or protected party. That the litigation friend controlled the defence of a claim which succeeded will not of itself generally make it just to make an adverse costs order against the litigation friend. Factors that might, depending on the specific facts, be thought to justify such an order include bad faith, improper or unreasonable behaviour and prospect of personal benefit. If a director causes his company to litigate “solely or substantially for his own benefit” (to quote Lord Brown in Dymocks), that may point towards a costs order against him. The fact that a litigation friend stands to gain a substantial personal benefit must also, I think, be capable of weighing in favour of a costs order against him.

Further guidance was also given as to in what circumstances based on the nature of their participation in the proceedings parties should be treated as claimants for the purposes of CPR 21.4(3).