Glover v Barker & Ors

The power to order a litigation friend to pay costs derives from section 51 of the Senior Courts Act 1981, unless the litigation friend has already given an applicable undertaking. The ultimate question is whether an order is just in all the circumstances.

A claimant’s litigation friend will typically pay costs which an adult claimant would have paid, subject to the court’s discretion. No corresponding presumption applies to a defendant’s litigation friend. Control of an unsuccessful defence is insufficient by itself. Relevant factors may include bad faith, improper or unreasonable conduct, and a substantial prospect of personal benefit.

Where the represented party is neither a conventional claimant nor defendant, the court must examine the nature and circumstances of the participation instead of relying on a binary label.

Ms Glover acted as litigation friend for her children, Tom and Freya, in an unsuccessful application concerning an earlier compromise of trust proceedings. Those proceedings and the compromise had deliberately been concealed from them, although another child had been appointed to represent their interests.

Morgan J dismissed the application and subsequently ordered Ms Glover to pay all of Mr Barker’s and Confiance’s costs and 90% of Euan’s costs: [2019] EWHC 1401 (Ch), [2019] 1 WLR 5737. He treated a litigation friend as generally liable for the costs which the represented party would ordinarily have paid if an adult.

The appeal concerned the proper approach under section 51 of the Senior Courts Act 1981, the distinction between litigation friends of claimants and defendants, and whether the nature of the twins’ application justified treating Ms Glover as a claimant’s litigation friend.

1. Appeal allowed. The costs orders against Ms Glover were set aside. The judge had erred in applying a general expectation that every litigation friend would bear the costs which the represented party would ordinarily have paid if an adult.

2. Unless an applicable costs undertaking has already been given, jurisdiction to order a litigation friend to pay costs derives exclusively from section 51 of the Senior Courts Act 1981. The ultimate question is whether an order is just in all the circumstances. General non-party costs principles may be refined for litigation friends because they occupy a distinct category: paras 58–64.

3. A claimant’s litigation friend will typically be ordered to pay costs where an adult claimant would have been ordered to pay them. This reflects CPR 21.4(3)(c) and the longstanding pre-CPR practice. It remains a discretionary approach, so the particular circumstances must be considered: paras 61–64.

4. No equivalent presumption applies to a defendant’s litigation friend. Mere control of an unsuccessful defence does not generally justify personal liability. Depending on the facts, bad faith, improper or unreasonable conduct, or the prospect of substantial personal benefit may support an order. The distinction is supported by the former authorities, the absence of any costs-undertaking requirement for defendants’ litigation friends under the CPR, access-to-justice considerations, and the treatment of company directors and the Official Solicitor: paras 63–65.

5. Where the represented party is neither a conventional claimant nor a conventional defendant, the court should examine the nature and circumstances of the participation. It should decide which approach is more appropriate before exercising its overall discretion. The issue is not resolved merely by asking who initiated the process which generated the costs: paras 78–80.

6. The twins’ application responded to their deliberate exclusion from proceedings and from a compromise affecting them. Its nature therefore called for the approach applicable to defendants’ litigation friends. Ms Glover had not acted in bad faith, had no prospect of substantial personal benefit, and had not pursued an application so obviously flawed as to justify an order. Unpaid costs from separate proceedings did not provide a sufficient basis for liability: paras 66–67 and 80–81.

7. Ms Glover had never given a CPR 21.4(3)(c) undertaking and could not be treated as if she had. In any event, such an undertaking covers costs ordered against the child or protected party, and no costs order had been made against Tom or Freya: paras 69–72.

• Court of Appeal (Civil Division): Allowed Ms Glover’s appeal and set aside the costs orders against her: [2020] EWCA Civ 1112 .
• High Court, Business and Property Courts, Property Trusts and Probate List: Morgan J ordered Ms Glover to pay all of Mr Barker’s and Confiance’s costs of the twins’ application and 90% of Euan’s costs: [2019] EWHC 1401 (Ch) , [2019] 1 WLR 5737 .
• High Court, principal proceedings: Morgan J dismissed the twins’ application for a direction that the earlier compromise order was not binding on them: [2018] EWHC 2965 (Ch) .