The Secretary of State for Transport v Elliott Cuciurean

In civil committal proceedings for the deliberate breach of an injunction, costs are ordinarily governed by the usual civil costs principles. Classification of the proceedings as a criminal charge for legal-aid purposes does not bring them within the protection in section 26 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.

Where protest rights under articles 10 and 11 are engaged, the combined effect of a penal sanction and costs must be proportionate. However, a knowing breach of an unvaried injunction protecting private land ordinarily justifies an award of reasonably and proportionately incurred costs. The contemnor's means may be relevant, but the court need not investigate them without satisfactory evidence.

The respondents had obtained an injunction restraining trespass on woodland used for the HS2 project. Mr Cuciurean, a protester, knowingly entered the protected land on 12 occasions in breach of that order. Marcus Smith J found him in contempt, imposed a suspended custodial sentence, and later ordered him to pay £25,000 towards the respondents' costs.

The liability and sanction decisions were reported at [2020] EWHC 2614 (Ch) and [2020] EWHC 2723 (Ch). A prior appeal reduced the sentence but otherwise upheld the orders: [2021] EWCA Civ 357.

This appeal concerned whether the costs order should have replicated the protection under section 26 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, or been reduced after a separate Convention proportionality assessment.

1. Appeal dismissed. The judge made no error of principle in ordering the appellant to pay £25,000 towards the respondents' costs.
2. An application to commit for civil contempt is treated as the determination of a criminal charge for legal-aid purposes. It remains a civil proceeding governed by the Civil Procedure Rules. Legal aid is provided under section 16, rather than as civil legal services. It therefore does not make the application relevant civil proceedings for section 26 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.
3. The ordinary approach is that costs follow the event, subject to the court's discretion and the requirements of CPR Part 44. Civil contempt proceedings, including protest cases, are not a special class in which a contemnor receives a costs cap based on means. Means may be taken into account where evidence is supplied, but the court is not obliged to conduct its own inquiry.
4. The court followed the guidance in A-G v Crosland [2021] UKSC 15 and [2021] UKSC 58. When articles 10 or 11 are engaged, the combined effect of a costs order and any penal sanction must be proportionate. That does not mean that costs which are proportionate under CPR Part 44 will always be Convention-proportionate.
5. Here the interference was prescribed by the injunction and pursued legitimate aims: protecting the respondents' proprietary or possessory rights, vindicating the rule of law, and maintaining the authority of the judiciary. The balance between protest rights and property rights had been struck when the injunction was granted. The appellant deliberately breached it while knowing its terms. A partial award of reasonable costs compensated the respondents for enforcing their rights and was necessary and fairly balanced. He remained free to protest without breaching the order.
6. The judge had no evidence of inability to pay or hardship. Fresh material about means could not show that the original discretionary decision was flawed. An appeal court could interfere only for an error of principle, a failure to consider a relevant matter, consideration of an irrelevant matter, or perversity. None was shown.

• Court of Appeal (Civil Division): dismissed the appeal against the costs order: [2022] EWCA Civ 661.
• Court of Appeal (Civil Division): on the earlier liability and sanction appeal, reduced the custodial sentence but otherwise left the penalty standing: [2021] EWCA Civ 357.
• High Court, Chancery Division: Marcus Smith J found the appellant in contempt and imposed sanction: [2020] EWHC 2614 (Ch); [2020] EWHC 2723 (Ch). He subsequently ordered costs of £25,000.