Glover v Barker & Ors

The Court of Appeal allowed the appeal and set aside costs orders that had been imposed on Ms Susan Glover, who had acted as litigation friend for her children. The court held that the statutory discretion under section 51 of the Senior Courts Act 1981 is wide and that pre-CPR and CPR authorities must be read together: a claimant’s litigation friend will typically be liable for costs where an adult claimant would have been liable, because CPR 21.4(3)(c) contemplates an undertaking by claimant litigation friends; but there is no general rule that a defendant’s litigation friend must be treated the same as an adult defendant. Whether to make a costs order against a litigation friend is a discretion to be exercised justly having regard to all the circumstances, and adverse orders against a defendant’s litigation friend will commonly require additional factors such as bad faith, impropriety, control for personal benefit or other exceptional features. Applying those principles, the court concluded that the judge below erred in principle in treating litigation friends uniformly as if they bore the adult party’s costs burden and that the orders against Ms Glover were not justified on the facts.

Background and parties. The appeal arose from an order that Ms Susan Glover pay the costs of respondents in an application brought by her children Tom and Freya (the "Twins' Application"), in which she acted as litigation friend. The underlying litigation concerned a 1998 deed of gift and employee benefit trust established by Mr Iain Barker and subsequent proceedings in which Mr Barker sought recovery of trust assets. Asplin J had approved a compromise of the main proceedings on 25 July 2014. The Twins were not informed of those proceedings or the proposed compromise and an application was subsequently issued by Tom and Freya seeking a direction that Asplin J’s order should not bind them.

Procedural history. The Twins’ Application was heard in the High Court by Morgan J, who in the Principal Judgment considered the construction of section 28 of the Inheritance (Provision?) Act 1984 in light of the Court of Appeal decision in related negligence proceedings. Morgan J held that Tom and Freya had no arguable claim against the trustee and refused their application. In a separate Costs Judgment ([2019] EWHC 1401 (Ch)) Morgan J ordered Ms Glover to pay costs of the respondents. Ms Glover appealed to the Court of Appeal.

Issues before the Court of Appeal. The principal issues were whether the judge was wrong in law to apply a general approach treating litigation friends as expected to be liable for costs as if the child or protected party were an adult; whether a defendant’s litigation friend is generally liable without misconduct; whether Tom and Freya should be characterised as claimants for the purpose of CPR 21.4(3)(c) so that an undertaking to pay costs should be treated as given; and whether the judge should have exercised his general discretion under section 51 of the Senior Courts Act 1981 to order costs against Ms Glover.

Reasoning and decision. The Court of Appeal analysed the statutory and rule framework (notably section 51 of the Senior Courts Act 1981 and CPR rules on litigation friends, including CPR 21.4(3)(c), 21.2, 21.3 and 21.9(6)), pre-CPR authorities on next friends and guardians and the authorities on costs against non-parties (including Dymocks). The court concluded that: (i) the power to order costs against a litigation friend where no prior undertaking has been given derives from section 51; (ii) it will ordinarily be just to order a claimant’s litigation friend to pay costs if an adult claimant would have been ordered to do so, reflecting both pre-CPR practice and CPR 21.4(3)(c); (iii) there is no general presumption that a defendant’s litigation friend should be liable to pay costs simply because the defendant (if an adult) would have been liable — orders against a defendant’s litigation friend normally require special factors such as bad faith, impropriety, control for personal benefit or comparable exceptional circumstances; and (iv) on the facts of this case Ms Glover did not act in bad faith nor stand to gain a substantial personal benefit and the Twins’ Application was not so hopeless as to justify a costs order. Accordingly the appeal was allowed and the costs orders against Ms Glover were set aside.

Appeal allowed. The Court of Appeal held that the judge below erred in principle in applying a general rule that a litigation friend should be liable for costs as if the child or protected party were an adult. The court reaffirmed that claimant litigation friends will typically be liable where an adult claimant would have been but that there is no automatic rule that defendant litigation friends are liable; adverse orders against a defendant’s litigation friend will usually require misconduct, impropriety, a prospect of personal benefit or similar exceptional factors. Applying that approach, costs orders against Ms Glover were not justified and were set aside.

Appeal from the High Court of Justice, Business and Property Courts (Property, Trusts and Probate List (ChD), Morgan J): Costs Judgment [2019] EWHC 1401 (Ch). The Principal Judgment in the related substantive proceedings was [2018] EWHC 2965 (Ch). The appeal was heard in the Court of Appeal (Newey LJ, Moylan LJ, Patten LJ) and allowed on 21 August 2020. The judgment refers to other interlocutory and related decisions, including Marcus Smith J ([2017] EWHC 1412 (Ch)), Birss J (costs decision 25 October 2017), and the Court of Appeal decision in the negligence proceedings ([2017] EWCA Civ 2056, reported [2018] 1 WLR 1905).