In Barker v Confiànce and others, the Chancery Division of the High Court considered the issue of costs orders against parties who are minors or their litigation friends. It held that there were no special principles preventing a costs order being made and that the court must consider all of the circumstances of the case.
Here, in a claim involving a number of child claimants, two of the children made an application which was dismissed. The respondents sought costs against the children or the litigation friend, who had not given the normal undertaking to pay costs, as required by CPR 21.4(3)(c), if the party is a claimant.
The decision contains a detailed discussion of the law in this area. The court rejected an argument that the litigation friend was only liable to pay costs in cases of gross misconduct. The case also sets out the considerable duties of a litigation friend, something to which solicitors for litigation friends and their clients often pay scant attention.
The court said that there was a long line of cases, dating back nearly 300 years, which established the practice that, in a 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 (paragraph 26). In effect, the courts treat the litigation friend as being responsible for the costs which would otherwise be ordered against the child if that party had been an adult. Section 51 of the Senior Courts Act 1981 is couched in very wide terms and clearly allows this practice to continue to be applied, as does CPR 44.2(4).
The court held that the reasoning in the pre-Senior Courts Act cases remains valid, and that nothing in the Act or the Civil Procedure Rules calls for it to reconsidered. In spite of the wording of CPR 21.4(3)(c), the court here held that a litigation friend for a defendant could be ordered to pay costs.
On the issue of liability of a litigation friend for costs, the court said:
“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.” (Paragraph 53.)
As to the issue of an order for costs in favour of a litigation friend, the court said:
“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.” (Paragraph 55.)
The court also said that the practice in a case involving a litigation friend is not to apply the indemnity principle, so as to hold that the child has incurred no costs and so is not entitled to recover costs. The costs incurred by the litigation friend 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.” (Paragraph 99.)
Costs against children
The court reviewed case law going back to 1725 and concluded that there is no general rule that the court will not make an order for costs against a child, unless it has been guilty of fraud or gross misconduct. Rather, as always, the general rule is that the court must consider all of the circumstances of the case.
