The Commission for Equality & Human Rights v Griffin & Ors

Costs ordinarily follow the event, but the court must consider the circumstances giving rise to the proceedings and the way in which they were conducted. A successful party may recover costs where the opposing party’s conduct caused or materially contributed to unnecessary proceedings, although that does not automatically justify indemnity costs. The court may make different orders for different parties where their responsibility and involvement materially differ. An interim payment on account may be refused where set-off, detailed assessment, or the reasonableness of separately incurred costs makes the amount uncertain.

The Commission applied to commit the defendants for contempt and sought other relief after alleging breaches of an order concerning amendments to the British National Party’s constitution. The defendants contended that the amendments complied with the order’s proper, narrower construction. The court determined that preliminary issue in the defendants’ favour, bringing the substantive proceedings to an end. This judgment concerned costs, including responsibility for the committal proceedings, the costs of a withdrawn application by Mr Griffin, indemnity costs, and interim payments on account.

1. Mr Griffin’s application. The application to strike out or discharge the earlier order raised separate issues and was not pursued when the hearing began. The Commission was therefore entitled to its costs of dealing with that application, but the costs should not be assessed on the indemnity basis.
2. Committal proceedings. The defendants had succeeded and therefore had a claim to their costs. The court nevertheless considered the circumstances giving rise to the proceedings and their conduct. The Commission genuinely believed that the order had the wider effect for which it contended, but the narrower construction adopted by the court was supported by the context. The defendants had not clearly raised the ambiguity before proceedings were issued, which had made the dispute less efficient and more costly.
3. Different responsibility. Ms Lumby’s involvement was peripheral and she had exercised no material influence over the relevant events. She was entitled to recover all her costs. Mr Darby had held a relevant office but had little real influence over Mr Griffin or the BNP and was also entitled to recover all his costs. Mr Griffin had exercised substantial influence over the constitutional amendments and the conduct of the dispute, but his conduct was not sufficiently blameworthy to justify depriving him of part of his preparation costs.
4. Orders. The Commission was ordered to pay Mr Griffin’s costs of the committal proceedings, subject to set-off against the costs recoverable from him in relation to his application. It was ordered to pay Ms Lumby’s and Mr Darby’s costs in full. The application for indemnity costs was refused. No interim payment on account was ordered because of the difficulties caused by set-off, detailed assessment, and uncertainty about the reasonable costs separately incurred by Ms Lumby and Mr Darby.

Not stated in the judgment.