Newman v Southampton City Council & Ors (COSTS and PTA)

A non-party seeking access to court documents will ordinarily bear the reasonable costs of providing access, but costs remain discretionary. The court may depart from that approach where payment would impose a disproportionate burden or frustrate the effective exercise of Convention rights. In deciding costs, the court should consider the nature of the access, the work required, the parties’ means, and the effect of the order. In applications engaging Articles 8 and 10, the balancing exercise is fact-specific. Consent by a parent to disclosure is relevant but does not create a general entitlement to media access. Permission to appeal requires a real prospect of success or another compelling reason.

The applicant, a journalist, had sought disclosure of the court file from public law children proceedings. In the substantive judgment, reported as Melanie Newman v Southampton City Council, AB, TR and M [2020] EWHC 2103 (Fam), wholesale disclosure was refused but limited disclosure was permitted, subject to redaction.

The remaining issues were the costs of redacting and copying the documents, and the applicant’s application for permission to appeal the disclosure decision. The central questions were whether the applicant should bear the reasonable costs of compliance and whether the proposed appeal satisfied the statutory permission test.

1. Costs. The parties agreed that there should be no order as to the costs of the substantive disclosure application. The issue was whether the applicant should pay for redaction and copying.
2. The Supreme Court’s general principle in Dring (on behalf of the Asbestos Victims Support Group) v Cape Intermediate Holdings Ltd [2019] UKSC 38, [2019] 3 WLR 429 is that a non-party seeking access should ordinarily pay the reasonable costs of providing it. That principle does not remove the court’s discretion to make a different order.
3. The court considered the applicant’s Article 10 rights, the child’s Article 8 rights, the limited nature of the disclosure, the applicant’s financial circumstances, the risk that a costs order would cause her to abandon the disclosure, and the local authority’s resources. A liability for redaction costs would be disproportionate and would risk rendering the disclosure order nugatory.
4. The copying exercise was materially different. The applicant offered to meet reasonable copying charges, and the court ordered her to pay those costs, limited to £45 per hour plus VAT. There was no order for the redaction costs, which the local authority was required to absorb. The court noted the discretionary approach illustrated by R (British American Tobacco) v Secretary of State for Health [2018] EWHC 3586 (Admin).
5. Permission to appeal. The three proposed grounds were treated as one challenge to the fact-specific balancing exercise. The court had considered the mother’s consent, the distinction between disclosure to a journalist and publication to the world, information already in the public domain, and the competing Convention rights. The proposed appeal had no real prospect of success and no other compelling reason justified permission under FPR 2010 r. 30.3(7). Permission was refused.

• High Court (Family Division): The substantive disclosure judgment was given in [2020] EWHC 2103 (Fam). In this judgment, permission to appeal was refused and consequential costs directions were made.