Costs Orders Against And In Favour Of Litigation Friends

BARKER V CONFIÀNCE LTD & ORS [2019] EWHC 1401 (CH)

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

Costs orders against Litigation Friends

“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.”

Costs orders in favour of Litigation Friends

“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.”

The decision includes a detailed analysis of the distinctions, if any, of a Litigation Friend acting on behalf of a claimant or defendant and how one is to distinguish between a “claimant” and a “defendant” in cases which are not so clear cut.

*This decision insofar as it relates to a litigation friend’s liability for costs has been successfully appealed.*

BARKER V CONFIÀNCE LTD & ORS [2019] EWHC 1401 (CH)