Times Media Limited v Rayner (Costs)

In a non-party disclosure application, the court may depart from the usual costs position where the successful applicant could reasonably have avoided a hearing by corresponding with an affected party and seeking agreement. The public interest in press reporting is relevant, but it may be outweighed by the need to preserve trust funds awarded to meet the future needs of a vulnerable child, particularly where the trustee is an innocent party required to participate to protect the child’s interests. The court should assess the parties’ conduct, the extent of success and the scope for compromise by reference to the applicable costs rules.

Times Media Limited applied for disclosure of documents from proceedings concerning financial arrangements following the divorce of Angela and Mark Rayner. The application also involved a bare trust established to hold damages awarded to one of their children in clinical negligence proceedings. The court ordered disclosure, subject to redactions, and imposed further restrictions concerning documents from the personal injury claim.

The Trust then sought its costs of preparing for and attending the disclosure hearing. TML resisted the application, relying on the short timetable, the public interest in reporting the matter and its overall success in obtaining disclosure. The central issue was whether, and to what extent, the court should depart from the general rule on costs.

1. Costs order. TML was ordered to pay the Trust’s costs of preparing for and attending the hearing, summarily assessed at £8,500 plus VAT.
2. The application was properly characterised as a non-party disclosure application in proceedings approving a financial remedy order. The court considered that Part 28 of the Family Procedure Rules 2010 governed the costs position. In any event, the relevant provisions of the Civil Procedure Rules 1998, including CPR r.44.2(4) to r.44.2(7), supplied the practical framework.
3. Although TML obtained the disclosure sought, that outcome could have been achieved without a hearing. Once TML knew that the Trust was involved, it had an opportunity to correspond before the hearing. The Trust’s skeleton argument made clear that it did not object in principle to disclosure, subject to redactions, and TML was neutral about those redactions.
4. The court therefore treated the Trust’s conduct and TML’s failure to seek a compromise as significant. The limited extent of TML’s success, and the substantial agreement between the parties, justified departing in part from the general rule that the unsuccessful party pays the successful party’s costs.
5. The court accepted that the application concerned matters of obvious public interest. However, that interest had to be balanced against preserving damages held on trust for a vulnerable child and, in due course, adult, rather than using those funds to meet costs of litigation not directly concerning the child. The Trust was an innocent party required to participate to protect the beneficiary’s interests.

Not stated in the judgment. This was a first-instance costs decision in the High Court (Family Division).