BARKER V CONFIÀNCE LTD & ORS (COSTS ORDERS AGAINST LITIGATION FRIENDS) | FULL CASE DETAILS AND DECISION
This judgment dealt with various applications relating to the costs of an unsuccessful application made by two children (Tom and Freya Barker), acting by their mother as their litigation friend.
The applications for costs raised issues of principle as to the circumstances in which a litigation friend can be ordered to pay costs and further issues as to whether orders for costs should be made against the children themselves.
The main proceedings
- In the main proceedings, Mr Barker had applied for orders which would, in effect, free him from the provisions of a trust and sub-trust which had been declared. His case in those proceedings was that the trust and sub-trust failed by reason of the operation of a condition to which the trust was subject, alternatively, should be set aside for mistake.
- Mr Barker joined as defendants to the main proceedings, the trustee (Confiànce Ltd), one of his five children (Euan Barker) but not Tom and Freya, a representative employee beneficiary under the trust and other adult beneficiaries.
- Euan was intended to be a representative defendant for Mr Barker’s five children (including Tom and Freya).
- At all times the five children were under 18.
- Euan acted by a litigation friend, a solicitor Ms Meek, and she instructed leading and junior counsel.
- After some negotiations, a settlement was agreed by all of the adult parties giving Mr Barker most of what he sought to achieve in those proceedings.
- As the settlement was to bind minor beneficiaries, the parties asked the court to approve the settlement.
- At a hearing on 25 July 2014, Asplin J appointed Euan as a representative defendant to represent all of Mr Barker’s five children and she approved the settlement on behalf of the five children.
The application of 27 June 2017
- On 27 June 2017, Tom and Freya, acting by their mother, Ms Glover, as their litigation friend, applied for various orders, namely:
i) an order adding Tom and Freya as Defendants to the main proceedings;
ii) an order lifting a stay of the main proceedings, which stay had been ordered on 25 July 2014;
iii) an order revoking or varying the order of 25 July 2014 which approved a settlement of the main proceedings;
iv) an order directing that the order of 25 July 2014 approving the settlement of the main proceedings was not binding on Tom and Freya.
- There was no court order providing for Ms Glover to act as a litigation friend for Tom and Freya.
- Accordingly, Ms Glover acted as a litigation friend without a court order in reliance on CPR 21.4(3) which provides:
“(3) If nobody has been appointed by the court or, in the case of a protected party, has been appointed as a deputy as set out in paragraph (2), a person may act as a litigation friend if he—
(a) can fairly and competently conduct proceedings on behalf of the child or protected party;
(b) has no interest adverse to that of the child or protected party; and
(c) 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 may have to be repaid from the assets of the child or protected party.”
- CPR 21.5(3) and (4) required Ms Glover to file and serve a certificate of suitability stating that she satisfied the conditions in CPR 21.4(3).
- Ms Glover did not at any stage give an undertaking of the kind referred to in CPR 21.4(3)(c).
- Reference had been made at various stages during the course of the application dated 27 June 2017 to the fact that Ms Glover had not given an undertaking of this kind including, on 10 August 2017, when the solicitors for Mr Barker wrote to the solicitors for Ms Glover and asked her to give such an undertaking.
- On 16 August 2017, the solicitors for Ms Glover replied that she was not obliged to give such an undertaking as Tom and Freya were not claimants within CPR 21.4(3)(c).
- The application of 27 June 2017 was considered at three separate hearings over four days on 3 October 2017, 30 and 31 July 2018 and 5 October 2018.
- At an early stage, the relief sought by the application was limited to an order directing that the order of 25 July 2014 was not binding on Tom and Freya.
- On 8 November 2018, Mr Justice Morgan handed down judgment dismissing the application.
The present applications
The present judgment dealt, first, with four applications which had been made arising out of the application of 27 June 2017. One of the four applications was made before judgment was handed down on 8 November 2018 and the other three were made following judgment.
The judgment also dealt with applications which were made by some of the parties for orders for costs against Tom and Freya; those applications were dealt with as consequential matters arising from my earlier judgment.
Euan’s Application of 23 July 2018
- On 23 July 2018, Euan applied for an order that he cease to be a party to the application of 27 June 2017.
- Euan had initially acted in relation to the application of 27 June 2017 by a solicitor, Ms Meek, as his litigation friend and, by order of 3 October 2017, she was replaced as litigation friend by Euan’s mother, Deborah Barker.
- Euan also applied for an order pursuant to CPR 46.2, that Ms Glover be added as a party to these proceedings for the purposes of costs only and for an order, pursuant to section 51 of the Senior Courts Act 1981, that Ms Glover pay his costs of that application.
- He further applied for an order that Tom and Freya do pay his costs of the application dated 27 June 2017.
Confiànce’s Application of 23 July 2018
- On 27 February 2019, Confiànce Ltd (“Confiànce”) applied for an order pursuant to CPR 46.2, that Ms Glover be added as a party to the proceedings for the purposes of costs only and further applied for an order, pursuant to section 51 of the Senior Courts Act 1981, that Ms Glover pay its costs of the application dated 27 June 2017.
- As a matter consequential on the earlierearlier judgment, Confiànce also applied for an order that its costs of the application dated 27 June 2017 be paid by Tom and Freya.
Ms Meek’s Application of 20 March 2019
- On 20 March 2019, Ms Meek (who had been separately joined as a respondent to the application of 27 June 2017) applied for an order pursuant to CPR 46.2(1) that Ms Glover be added as a party to these proceedings for the purposes of costs only.
- She then applied for an order, pursuant to section 51 of the Senior Courts Act 1981, that Ms Glover pay her costs of the application of 27 June 2017.
- She also applied for an order that Tom and Freya do pay her costs of the application dated 27 June 2017 but she did not press that application at the hearing in relation to costs.
Mr Barker’s Application of 29 March 2019
- On 29 March 2019, Mr Barker applied for an order pursuant to CPR 46.2(1)(a), that Ms Glover be added as a party to these proceedings for the purposes of costs only and further applied for an order, pursuant to section 51 of the Senior Courts Act 1981, that Ms Glover pay his costs of the application dated 27 June 2017.
- Mr Barker did not seek an order for costs against Tom and Freya.
MR JUSTICE MORGAN:
16. For the purpose of dealing with the applications which are now before me, I will proceed on the basis that anyone reading this judgment will have access to my earlier judgment and I will not therefore repeat or summarise what I there said.
The position of a litigation friend
17. Ms Glover was the litigation friend for Tom and Freya throughout. Further, Euan acted through a litigation friend, first Ms Meek and then Deborah Barker. The legal principles which apply in relation to the potential liability of a litigation friend for the costs of opposing parties are of central importance to the applications for orders for costs against Ms Glover. However, when the applications for costs were argued at the hearing before me, the applicants for costs did not focus on the special position of a litigation friend but instead sought to bring the case within the principles which apply to applications for non-party costs orders under section 51 of the Senior Courts Act 1981 and CPR 46.2. As a result, I heard detailed submissions on the law and the facts as to whether Ms Glover had controlled the litigation pursuant to the application of 27 June 2017, whether she had funded that application and whether she stood to benefit from the pursuit of that application.
18. Nonetheless, at the hearing of the applications for costs, reference was made to the decision in Rutter v Rutter  P 136 and, in the light of that decision, I suggested to the parties that it might be more appropriate to concentrate on the special position of a litigation friend than to consider questions as to control, funding and potential benefit from the application.
19. After the hearing, Mr Cloherty for Mr Barker referred me to Halsbury’s Laws, 5th ed., Vol 10 (2017), Children and Young Persons, in particular, at paras. 1417 to 1421; I will refer to this work below as “Halsbury’s Laws, Vol 10”. In the light of that reference, I invited the parties to make further submissions in writing in relation to some of the propositions contained in those paragraphs. The parties then made detailed submissions as to the potential liability of a litigation friend for the costs of opposing parties and also as to the potential liability for costs of a child who acts by a litigation friend. I found the written submissions to be of considerable assistance and, indeed, of greater assistance than the submissions made at the hearing as to non-party costs orders.
20. A litigation friend is appointed for a child or a protected party in order to “conduct” proceedings on their behalf. The word “conduct” is used throughout CPR Part 21. A litigation friend is expected to conduct such proceedings fairly and competently: see CPR 21.4(3)(a). For that purpose, a litigation friend must acquaint themselves with the nature of the proceedings and is obliged to take all due steps in those proceedings to further the interests of the child or protected party: see In re Whittall  1 WLR 1027 and AKB v Willerton, OH v Craven  4 WLR 25 at ; and see also In re Barbour’s Trusts  1 WLR 1198.
21. A litigation friend ought not to have an interest of their own which is adverse to the interests of the child or protected party. This is reflected in the wording of CPR 21.4(3)(b) and is made clear in the authorities: see, for example, Rhodes v Swithenbank (1889) 22 QBD 577. Pursuant to CPR 21.7, the court may direct that a person may not act as a litigation friend or may terminate the appointment of a litigation friend. A litigation friend can be removed where their interest conflicts with that of the child or protected party: see, for example, Nottinghamshire CC v Bottomley  Med LR 407 at -.
It was accepted at the hearing before me that a litigation friend is not a party to the proceedings in which they act. This is consistent with the decisions to that effect in Sinclair v Sinclair (1845) 13 M & W 640 and Dyke v Stephens (1885) 30 Ch D 189.
23. Before the CPR introduced the term “litigation friend”, the predecessor of the litigation friend was “the next friend” acting for a claimant and a “guardian ad litem” acting for a defendant (at any rate these were the terms used in the Chancery and Queen’s Bench Divisions). In the early cases, a next friend was called, in law French, a prochein amy (or some similar spelling).
Halsbury’s Laws, Vol 10
24. Halsbury’s Laws, Vol 10, para. 1418 is headed “Liability of child claimant and litigation friend for costs” and para. 1420 is headed “Liability of child defendant and litigation friend for costs”. So far as litigation friends are concerned, the first of these paragraphs considers the liability for costs of a litigation friend acting for a child “claimant” and the second of these paragraphs considers the liability of a litigation friend acting for a child “defendant”. These paragraphs suggest that the liability for costs of a litigation friend may differ depending on whether the litigation friend is acting for a “claimant” or a “defendant”. I will consider later whether this distinction is justified by the authorities and/or is appropriate. However, in the first instance, I will consider what the authorities say as regards the liability for costs of a litigation friend.
25. I note that there is no relevant discussion about the liability of a litigation friend for costs in Halsbury’s Laws dealing with Mental Health and Capacity (Vol 75) or with Civil Procedure (Vols 11, 12 and 12A).
A litigation friend for a child claimant
There is a long line of cases which establish the practice that in the case of an unsuccessful claim by a child claimant acting by a litigation friend, the usual order is that the litigation friend will be ordered to pay the successful defendant’s costs.
Those cases include Englefield v Round (1727) Cooke, Common Pleas 32, Slaughter v Talbot (1739) Barnes 128 also reported at (1739) Willes 190, Buckly v Buckeridge (1767) Dickens 395, Marnell v Pickmore (1796) 170 ER 424, Sinclair v Sinclair (1845) 13 M & W 640 per Parke B, Jones v Lewis (1847) De G & Sm 245, Collins v Brook (1860) 5 H & N 700, Beavan v Beavan (1862) 31 LJ (P) 166, Catt v Wood  2 KB 458 (affirmed by the House of Lords on a different point,  AC 404), Slingsby v Attorney-General (1916) 32 TLR 364 (Court of Appeal) and (1916) 33 TLR 120 (House of Lords) and Rutter v Rutter  P 136.
27. The principle was stated in those cases in general terms. For example, in the early case of Slaughter v Talbot, as reported in (1739) Barnes 128, it was said:
“by the uniform practice of all the Courts the prochein amie is liable to costs.”
28. There are other cases (not included in the above list) where costs were awarded against a next friend where the court disapproved of their conduct but the authorities listed above indicate that the usual order was that the litigation friend was ordered to pay the successful defendant’s costs even where there was no specific disapproval of the conduct of the next friend.
In effect, the courts treated the litigation friend as being responsible for the costs which would otherwise be ordered against the child if that party had been an adult.
29. The cases referred to above were decided long before the Senior Courts Act 1981 and the CPR. Section 51(3) of the Senior Courts Act 1981 provides that the court has full power to determine “by whom and to what extent the costs are to be paid”. That wording plainly permits the court to apply the earlier practice as regards the liability of a litigation friend for the costs of an unsuccessful claimant, acting through that litigation friend. The substantial case law which has developed as to the making of non-party costs orders pursuant to section 51(3) has identified the relevance of matters such as whether the non-party has controlled and/or funded the litigation and whether the non-party stood to benefit from the litigation. The earlier cases about litigation friends proceeded on different principles which made it unnecessary to examine matters such as funding of the litigation and benefitting from the litigation. As to control, the litigation friend was expected to control the litigation.
The case law which has developed in relation to section 51(3) has not considered the position of litigation friends and I do not read that case law as in any way supplanting the established rules as to litigation friends and replacing those rules with new criteria which involve an assessment of matters such as funding and benefitting from the litigation.
30. As to the position under the CPR, CPR 44.2(4) directs that when exercising the discretion as to costs the court has regard to all the circumstances. Again, the wording plainly permits the court to apply the earlier practice. I consider that the reasoning in the earlier cases remains valid at the present time. Nothing in the Senior Courts Act 1981 nor the CPR undermines that reasoning or calls for it to be reconsidered.
31. Mr Saoul QC, for Ms Glover and Tom and Freya, referred to the specific reference to costs in CPR 21.4(3)(c). This provision only applies where the child or protected party is “a claimant” and specifically requires a litigation friend for a claimant to give an undertaking to pay any costs which the child or protected party may be ordered to pay in relation to the proceedings. I heard argument as to whether Tom and Freya were “claimants” within CPR 21.4(3)(c) and I will refer to that argument later in this judgment. Mr Saoul submitted that where a litigation friend acted for someone who was undoubtedly a claimant, CPR 21.4(3)(c) showed that a litigation friend can only be made liable for costs where they have given an undertaking to be so liable. 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.
32. The applicants for costs against Ms Glover relied on CPR 21.9(6) which provides that the liability of a litigation friend for costs continues until notice is given under that rule to the effect that the appointment of the litigation friend has ceased. That rule shows that there can be cases in which a litigation friend is liable for costs but the rule itself does not define what those circumstances are. Nonetheless, the wording of the rule is consistent with my understanding of the legal position as described above.
33. I explained earlier that a litigation friend is not a party to the proceedings. In the earlier cases to which I referred, there was no sign of the court joining the litigation friend as a party as a preliminary to making an order for costs against the litigation friend.
CPR 46.2, which deals with costs orders in favour of or against non-parties provides that such a person must be added as a party to the proceedings for the purposes of costs only. It is not clear to me that this rule requires a litigation friend to be added as a party before the court can make an order for costs against them. However, there is no difficulty in the present case as I am able to make Ms Glover a party to the proceedings if that is necessary before I make any order for costs against her.
A litigation friend for a child defendant
34. Halsbury’s Laws, Vol 10, para. 1420 contains the statement:
“A litigation friend is not liable to pay the costs of an unsuccessful defence unless he has been guilty of gross misconduct.”
The footnote to this statement cites Morgan v Morgan (1865) 11 Jur NS 233 and Vivian v Kennelly (1890) 63 LT 778. The footnote also cites Rutter v Rutter  P 136 at 141-142 in a way which suggests that this case might not support the statement in the text.
35. Before considering Morgan v Morgan it is necessary to refer to the earlier case of Bamford v Bamford (1845) 5 Hare 203, which was considered in Morgan v Morgan. Bamford v Bamford did not involve a litigation friend. It was a claim by a widow for dower. The widow sued the persons in possession of the estate of her late husband for dower. The claim was defended and the defence failed. The widow then asked for her costs of her successful claim. She submitted that as the claim had been unsuccessfully defended, the case came within “the ordinary rule of adverse suits”. The defendants argued that the general rule in claims for dower was that there was no order as to costs. They also argued that their defence had been a reasonable defence, albeit unsuccessful. The Vice-Chancellor (Sir James Wigram) referred to the general rule in claims for dower that there was no order as to costs. He then qualified the general rule by saying that if a defendant set up a positive defence to the claim, he “may be liable to pay the costs of the suit occasioned by that unsuccessful defence”. He then referred to a case where the defence was without “any just ground” or was based on a statement which the defendant knew or ought to have known was untrue, where the widow would be entitled to the costs occasioned by such defence. He then held that the unsuccessful defence in Bamford v Bamford was not of such a character and he made no order as to costs. I interpret that case as holding that in a claim for dower, costs did not necessarily follow the event. An unsuccessful defence did not necessarily result in the defendant paying the costs. However, a defence which was open to some criticism (of the kind instanced by the Vice-Chancellor) could justify an adverse order for costs.
36. Morgan v Morgan was also a claim by a widow for dower. The estate of the deceased husband was vested in a trustee for his heir who was a child and who was the sole defendant. The child acted through a guardian ad litem who defended the claim setting up an alleged agreement on the part of the widow which was said to be inconsistent with the claim to dower. The Vice-Chancellor (Sir Richard Kindersley) held that the alleged agreement had not been established and, if it had been, it would have been within the Statute of Frauds. The widow then applied for her costs and cited Bamford v Bamford. The Vice-Chancellor said:
“The question is whether a guardian ad litem becomes liable to costs by raising such a defence as would, upon the authority of Bamford v Bamford, make an adult defendant so liable. I will ascertain, through the registrar, whether there is any fixed practice upon this subject and, if there is none, I must decide upon what I think the practice ought to be.”
37. The Vice-Chancellor returned to court some days later and then said:
“I have looked into the question, and I think it is impossible in this case to order the guardian ad litem to pay these costs. I do not mean to say there could not be such a case of gross misconduct as to render him liable to do so, but that is not the case here; and [the widow] is much in the same position as a plaintiff suing a pauper defendant. Each party, according to the ordinary rule in dower suits, will bear his own costs.”
38. The parties before me disagreed as to the correct interpretation of the Vice-Chancellor’s ruling. Mr Saoul submitted that the Vice-Chancellor held that it was not appropriate to make an order for costs against the litigation friend of a child defendant unless the litigation friend was guilty of gross misconduct. Ms Talbot-Rice submitted that the Vice-Chancellor simply applied the earlier decision in Bamford v Bamford and held that costs did not follow the event in a dower case unless the defendant was guilty of gross misconduct.
39. I consider that Mr Saoul’s interpretation of the case is nearer to the true position. In his first judgment, the Vice-Chancellor was not in any doubt as to the authority of Bamford v Bamford. He indicated that if the child defendant in Morgan v Morgan had been an adult, the Vice-Chancellor would have made an order for costs against him. The only matter he needed to inquire into was as to the position of the litigation friend. His subsequent ruling is to be understood as a finding that he would not make an order for costs against the litigation friend of a child defendant even where he would have made an order for costs against an adult defendant. He referred to an exception for a case of gross misconduct but that exception is much more narrowly expressed than the test in Bamford v Bamford as to when costs could be ordered against an unsuccessful defendant in a dower suit. Although the Vice-Chancellor concluded his judgment by saying that there would be no order for costs “according to the ordinary rule in dower suits”, I do not take him to be reversing his earlier statement that, applying Bamford v Bamford, he would have made an order for costs against an adult defendant in that case.
40. If Morgan v Morgan is interpreted in this way, it does provide some support for the statement in Halsbury’s Laws, Vol 10, para 1420. I recognise, however, that I cannot be wholly confident as to the correct interpretation of the ruling in that case.
41. The second case cited in Halsbury’s Laws, Vol 10 was Vivian v Kennelly (1890) 63 LT 778. In that case, the widow of the deceased brought proceedings in which she propounded his will. An infant niece of the deceased challenged the will on a number of grounds and, acting by a guardian ad litem, defended the widow’s proceedings on five separate grounds including allegations of insanity and undue influence. The niece also brought a counterclaim based on the same allegation of insanity. After a five-day trial, the widow succeeded on all points. The court ordered the taxation of her costs. The registrar taxed the costs and ordered that they be paid by the niece’s guardian ad litem, but not by the niece. On appeal, Sir James Hannen P ordered the guardian ad litem of the niece and the niece herself to pay the successful plaintiff’s costs. The law report does not contain any reasons for the decision.
In the absence of reasons, the case does not provide any support for the general proposition in Halsbury that the court does not order the litigation friend of a child defendant to pay costs in the absence of gross misconduct. In that case, the litigation friend was ordered to pay the costs and the law report does not contain any reference to gross misconduct.
42. Vivian v Kennelly was cited in Rutter v Rutter where there was a petition for divorce by a husband who was under 21 (acting by a guardian ad litem) and a cross-petition for divorce by a wife. In the Probate Division of the High Court, a guardian ad litem for a petitioner was similar to a next friend. The husband’s petition failed and the wife’s cross-petition succeeded. The wife applied for and obtained an order that the husband’s guardian pay her costs of the husband’s petition. The wife did not apply for an order that the husband’s guardian pay her costs of her cross-petition. The judge ordered the guardian ad litem for the husband to pay the wife’s costs.
This case is not authority either way in relation to a claim for costs against the litigation friend of a child defendant. The wife had not asked for the costs of her cross-petition against the guardian ad litem and the judge commented that such a claim would raise “a different question”: see at 140.
43. 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.
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.
45. 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.
46. 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.
Who is a claimant and who is a defendant?
47. If I am wrong about the legal principles and there is a special rule to the effect that the court will not make an order for costs against a litigation friend for an unsuccessful child “defendant” in the absence of gross misconduct, then it would be necessary to establish how one is to distinguish between a “claimant” and a “defendant” for the purposes of this special rule. The many cases to which I have referred, where the court ordered litigation friends to pay costs, involved facts where the distinction between a claimant and a defendant was clear cut. Those cases did not discuss the test to be applied in order to distinguish between a claimant and a defendant where the position was not so clear. If there is a special rule of this kind, then the reason for the rule could be said to be a recognition of a difference between a party (acting by 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.
To answer the question in the last paragraph, the court should have regard to the substance of the matter and not merely the form of the proceedings. The court should adopt a similar approach to that adopted when asking itself who is the claimant, and what are the nature of the proceedings (interim or substantive), when dealing with applications for security for costs; on which point, see GFN SA v Bancredit Cayman Ltd  Bus LR 587 at -.
49. By their application of 27 June 2017, Tom and Freya sought various heads of relief. They asked to be joined as defendants to the main proceedings brought by Mr Barker. They sought an order lifting a stay of those proceedings granted on 25 July 2014. They asked for the order of Asplin J of 25 July 2014 to be revoked or varied or declared to be not binding on them. They indicated that they sought directions for the final hearing of this application.
50. Having regard to the substance of the application of 27 June 2017, I consider that Tom and Freya acting by their litigation friend started the legal process which led to the costs being incurred. By the time they made that application, having regard to what had happened on 25 July 2014, they were not merely defending proceedings that had been brought against them but they were initiating a challenge to the pre-existing state of affairs based on new allegations which they were advancing. On this basis, even if there is a special rule that the court will not order a litigation friend of a defendant to pay the costs of a successful claimant, in the absence of gross misconduct, I conclude that such a rule would not apply to the circumstances of the application of 27 June 2017.
51. I am aware that on the first day of the hearing of the application dated 27 June 2017, leading counsel who then appeared for Tom and Freya accepted a suggestion from the court that the only relief they needed was a determination that the order of 25 July 2014 was not binding on them. I do not regard that change of position on the part of leading counsel for Tom and Freya as altering the substance of the application and how the application should be assessed for the purposes of applying the alleged special rule as to orders for costs against a litigation friend for a defendant.
52. The applicants for costs submitted that Tom and Freya were “claimants” within the meaning of CPR 21.4(3)(c). The applicants for costs then submitted that Ms Glover ought to have given an undertaking to pay any costs which Tom and Freya were ordered to pay and that I should proceed on the basis that she had given such an undertaking. Mr Saoul submitted that Tom and Freya were not “claimants” within the meaning of this rule. I consider that it is not necessary to decide whether Tom and Freya qualified as “claimants” for the purposes of CPR 21.4(3)(c) and, if so, whether I should treat Ms Glover as having given an undertaking when she in fact had not done so. Even if this case does not come within this rule, the existence of the rule does not preclude the court having regard to all the circumstances of the case in order to decide how to exercise its discretion as to costs.
Conclusion as to the liability of a litigation friend for costs
53. 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.
Conclusions as to Ms Glover
96. I am now in a position to arrive at my conclusions as to the applications for costs against Ms Glover. For this purpose, I will apply the ordinary rules as to the costs payable by an unsuccessful party, treating a litigation friend for such a party in the same way as the party.
97. I conclude that Mr Barker and Confiànce have established that it is just for their costs to be paid by Ms Glover.
98. I next consider the application for costs by Euan acting by his litigation friends, first Ms Meek and then Deborah Barker. Euan’s application is based on the fact that he was only a necessary party whilst Tom and Freya were pursuing the parts of the application of 27 June 2017 for orders lifting the stay imposed by the order of 25 July 2014 and revoking or varying that order. In due course, Tom and Freya indicated that they were not pursuing that relief but were instead only seeking an order that the order of 25 July 2014 was not binding on them. When that became clear, Euan did not incur further costs, apart from the need to incur the costs of applying to recover his earlier costs.
I conclude that Euan has made out his claim to costs on the basis on which it was put. I should add a word of explanation in this respect. Euan is a party and is entitled to his costs. In the event, Euan did not himself retain solicitors and incur legal costs. However, the practice in a case involving a litigation friend is not to apply the indemnity principle so as to hold that Euan has incurred no costs and so is not entitled to recover costs. Instead, the costs incurred by the litigation friend (who will have retained the relevant solicitor) are considered to be the costs of the party. Another way of analysing the matter might involve holding that the litigation friend is entitled to an indemnity from the party for whom they were the litigation friend and, in that way, the party does incur the liability for the costs in question. As I understand it no difficulty of that kind arises in the present case and I need not consider the point further.
100. I will qualify my conclusions as to Euan’s costs in one respect. I do not see why Ms Glover should pay the costs incurred by Euan (acting through his litigation friends) in connection with the application to remove Ms Meek as his litigation friend and to replace her with Deborah Barker. Ms Glover was not responsible for that application being made and did not oppose it when it was made.
101. This conclusion as to Euan’s costs is subject to my earlier decision that 10% of his costs should be disallowed by reason of the conduct complained of in relation to the main proceedings and the hearing of 25 July 2014.
102. Euan has applied for his costs to be assessed on the indemnity basis. I am not persuaded that this is a case outside the norm which would justify such an order. I am not persuaded that there is any reason why Euan should be allowed to recover more costs than the costs which are reasonable costs, reasonably incurred, and which are proportionate to the matters in issue which involved him.
103. Finally, I consider Ms Meek’s application for costs as a separate respondent to the application of 27 June 2017. Having dealt with the earlier arguments concerning Ms Meek, I conclude that she has established that it is just for her costs to be paid by Ms Glover.