Wilkinson v Kitzinger & Ors

A protective costs order may be made in family status proceedings which are essentially quasi-public where the dispute concerns the elucidation of public law. The court may apply the principles in R (On the Application of Corner House Research) v Secretary of State for Trade and Industry [2005] EWCA Civ 192. Such an order is inappropriate where the law is clear, the claim seeks to change a recent legislative choice rather than clarify it, the applicant has resources to meet a costs order, and discontinuance is unlikely. A personal interest is a flexible consideration, not an automatic bar. Pro bono representation may enhance an application but is not sufficient by itself. The court may instead cap costs exposure at a reasonable level.

The petitioner sought declarations under section 55 of the Family Law Act 1986 concerning a same-sex marriage celebrated in British Columbia. Following the Civil Partnership Act 2004, the parties were treated in England as civil partners rather than married. The petitioner also sought, if necessary, a declaration of incompatibility concerning section 11(c) of the Matrimonial Causes Act 1973.

The application concerned only whether the petitioner should receive a protective costs order against potential costs awarded to the Lord Chancellor, who had intervened on behalf of the Crown. The central issue was whether the criteria for such an order were satisfied.

1. Costs jurisdiction and applicable approach. The protective costs order application was refused. The general costs discretion under section 51 of the Supreme Court Act 1981, CPR 44.3(1) and CPR 3.2 was not fettered by the absence of a specific provision governing the Lord Chancellor’s costs. Family proceedings were not subject to the usual presumption that costs follow the event because FPR 10.27(1)(b) excluded CPR 44.3(2).
2. The proceedings were formally private-law proceedings under the Family Law Act 1986, but were essentially quasi-public because they concerned status and the elucidation of public law. It was therefore appropriate to approach the application using the principles stated in R (On the Application of Corner House Research) v Secretary of State for Trade and Industry [2005] EWCA Civ 192.
3. Corner House criteria. A protective costs order required consideration of whether the issues were of general public importance, whether the public interest required their resolution, whether the applicant had no private interest, whether the order was fair and just having regard to resources and likely costs, and whether refusal would probably lead to reasonable discontinuance. Pro bono representation could enhance the merits but was not conclusive.
4. The proposed argument that section 11(c) of the Matrimonial Causes Act 1973 could be read out under section 3(1) of the Human Rights Act 1998 had no real prospect in light of Bellinger v Bellinger [2003] UKHL 21. The wider Convention challenge was arguable in a broad sense, but its prospects were substantially in doubt because it extended beyond current English and European jurisprudence.
5. The issues were of interest and importance to those directly affected, but the law was clear and the proceedings sought to change a recent legislative choice rather than clarify or uphold existing law. The public-interest criteria were therefore not satisfied. The private-interest criterion was flexible and would not alone have defeated the application.
6. The petitioner and first respondent had sufficient income, assets or borrowing capacity to meet a costs order, and had made a measured decision to proceed with the litigation. It was not probable that they would discontinue without a protective costs order, provided the potential costs were reasonably quantified.
7. The trial judge’s discretion to award or refuse costs against the Lord Chancellor was preserved, but any award was capped at £25,000 inclusive of VAT.