Unknown case

A litigation friend is generally liable for the costs which the child or protected party would ordinarily have been required to pay if an adult. The court must consider all the circumstances and may depart from that usual position where appropriate. The same flexible approach applies whether the litigation friend acts for a claimant or defendant. There is no inflexible rule that a litigation friend for a child defendant is liable only for gross misconduct. Similarly, there is no general rule that a child cannot personally be ordered to pay costs absent fraud or gross misconduct. The court must assess the circumstances, including the child’s position and the risk of injustice. Where information relevant to approval of a settlement involving children is deliberately withheld from the court, that conduct is unacceptable, although the resulting costs consequences remain discretionary and must be proportionate.

The judgment concerned costs arising from an unsuccessful application by Tom and Freya Barker, acting through their mother, Ms Glover, as litigation friend. The application sought to challenge the binding effect of a 2014 order approving a trust settlement involving five children. The earlier application was dismissed in [2018] EWHC 2965 (Ch).

The court considered applications for costs against Ms Glover as litigation friend, applications for costs in favour of Euan Barker and Ms Meek, and applications for costs against Tom and Freya personally. The central issues were the applicable principles governing liability of litigation friends and children for costs, and the relevance of earlier conduct surrounding the representation order and settlement approval.

1. Liability of a litigation friend. The usual approach is that a litigation friend for an unsuccessful child party is liable for the costs which that party would normally have been required to pay if an adult. The court must consider all the circumstances under CPR 44.2(4), but the earlier practice concerning litigation friends remains valid. Section 51 of the Senior Courts Act 1981 and CPR 46.2 do not replace that practice with tests based on control, funding or benefit.
2. CPR 21.4(3)(c), concerning an undertaking by a litigation friend for a claimant, supplements rather than displaces the general principles. The court therefore rejected the submission that a litigation friend can be liable only where an undertaking has been given, or only when acting for a claimant.
3. The authorities do not establish an inflexible rule that a litigation friend for a child defendant can be ordered to pay costs only for gross misconduct. If the distinction between claimant and defendant is relevant, the court should consider the substance of the matter. Tom and Freya had initiated the legal process which generated the costs, notwithstanding that they sought to challenge an existing order as defendants.
4. A child may itself be ordered to pay costs. There is no general rule restricting such orders to cases of fraud or gross misconduct. The court must consider all the circumstances and may decline to make an order where enforcement would be pointless or injustice would result.
5. The deliberate concealment of relevant information from the court when seeking a representation order and approval of a settlement involving children was unacceptable. The court must be fairly informed because it is deciding what is in the children’s best interests. That conclusion was fact-specific and did not impose a general duty on every representative defendant to consult all represented persons.
6. The court declined to deprive Mr Barker or Confiànce of their costs merely because of earlier disapproved conduct. The unsuccessful application remained the basis of the costs incurred, and imposing a further penalty would not have been proportionate. Ten per cent of Euan’s costs was disallowed to mark the earlier conduct. Ms Glover was ordered to pay the costs of Mr Barker, Confiànce and Ms Meek. Euan recovered his costs, subject to the 10 per cent reduction, but not costs relating to replacing Ms Meek as litigation friend. No order for costs was made against Tom and Freya personally because the material indicated that Ms Glover had initiated the application and the risk of injustice was greater if the children were made liable.