Symes v Phillips & Ors

The ordinary principles governing costs in inter partes civil proceedings also apply to civil contempt proceedings. The court must nevertheless account for features particular to contempt, including the contemnor’s responsibility for bringing about the proceedings, the need to avoid deterring parties from assisting the appellate court, and the special weight due when the liberty of the subject is involved.

The conduct and outcome of the appeal remain important. Substantial but incomplete appellate success may justify a proportionate costs award after all relevant circumstances have been balanced.

The appellant had been committed to prison for two years for admitted and serious contempts of court. On his appeal, the Court of Appeal reduced the sentence to one year and modified the committal order in his favour. He was legally aided and sought his costs of the appeal, contending that costs should follow his substantial success.

The respondents argued that the contemnor had brought the proceedings upon himself, that their participation had assisted the court, and that he had failed on some issues. The question was how the court’s costs discretion should operate following a substantially successful appeal in civil contempt proceedings.

1. The application for costs was allowed in part. The court exercised its discretion under Part 44.3 of the Civil Procedure Rules 1998 by awarding the contemnor one half of his costs of the appeal, including the costs of determining the costs issue.

2. There is no difference in principle between the approach to costs in civil contempt proceedings and that in other inter partes civil proceedings. Pill LJ respectfully agreed with the statement to that effect by Sachs LJ in Knight v Clifton [1971] Ch 700. Contempt proceedings may, however, contain factors that do not ordinarily arise in other civil litigation.

3. Relevant factors included that the contemnor’s admitted contempts had brought the entire proceedings upon himself. That placed him in a weaker position to claim inter partes costs than most successful litigants. The court also gave weight to the need not to deter claimants from assisting an appellate court where they were best placed to explain what had occurred at the trial.

4. The liberty of the subject required special weight. The conduct and outcome of the appeal were also important. Although the appellant failed in some criticisms of the judge’s conduct, he achieved very substantial success. Considerable hearing time concerned issues on which the respondents unsuccessfully sought to justify the judge’s approach.

5. Balancing those matters, together with the appellant’s decision not to challenge the costs order below, justified a half-costs award rather than the whole of the appeal costs. Longmore LJ agreed.

1. Court of Appeal (Civil Division): On the substantive appeal, reduced the appellant’s sentence for contempt from two years to one year and otherwise modified the committal order in his favour. In this costs judgment, [2005] EWCA Civ 663, it awarded him one half of his appeal costs.

2. High Court, Chancery Division: Peter Smith J committed the appellant to prison for two years for contempt and made a costs order against him. The appellant did not challenge the costs order below.