Stephen Hackett (instructed by Candey Ltd) for the Applicants and Ms Glover, in the leading modern authority on the liability of minors and their litigation friends for costs orders
Summary: When considering whether to make an order for costs against a litigation friend who had acted for an unsuccessful child party, the general approach was that the litigation friend was expected to be liable for such costs as the relevant party, if they had been an adult, would normally have been required to pay. There was no general rule that a costs order could not be made against the child personally; in deciding whether to exercise its discretion as to costs, the court had to consider all the circumstances.
The Hon Mr Justice Morgan:
Introduction
This judgment deals with various applications relating to the costs of an unsuccessful application made by two children (Tom and Freya Barker), acting by their mother as their litigation friend. The applications for costs raise issues of principle as to the circumstances in which a litigation friend can be ordered to pay costs and further issues as to whether orders for costs should be made against the children themselves.
These issues of principle are not discussed in the White Book; nor do they appear to be covered in the standard practitioners’ works. They are dealt with in Halsbury’s Laws, 5th edn., vol 10 (2017), Children and Young Persons but some of the submissions made to me challenged the way the principles were there described.
The main proceedings
The applications for costs relate to an application which was made by Tom and Freya on 27 June 2017, which I will describe in more detail below. On 8 November 2018, I handed down judgment dismissing that application. The neutral citation of that judgment is [2018] EWHC 2965 (Ch). That judgment sets out in detail the background to that application and I will not set out that background again. However, it is necessary to make a brief reference to earlier proceedings (which I will call “the main proceedings”) which resulted in an order made on 25 July 2014.
In the main proceedings, Mr Barker applied for orders which would, in effect, free him from the provisions of a trust and sub-trust which had been declared. His case in those proceedings was that the trust and sub-trust failed by reason of the operation of a condition to which the trust was subject, alternatively, should be set aside for mistake.
Mr Barker joined as defendants to the main proceedings, the trustee (Confiànce Ltd), one of his five children (Euan Barker) but not Tom and Freya, a representative employee beneficiary under the trust and other adult beneficiaries. Euan was intended to be a representative defendant for Mr Barker’s five children (including Tom and Freya). At all times, including at present, the five children were under 18. Euan acted by a litigation friend, a solicitor Ms Meek, and she instructed leading and junior counsel. After some negotiations, a settlement was agreed by all of the adult parties giving Mr Barker most of what he sought to achieve in those proceedings. As the settlement was to bind minor beneficiaries, the parties asked the court to approve the settlement. At a hearing on 25 July 2014, Asplin J appointed Euan as a representative defendant to represent all of Mr Barker’s five children and she approved the settlement on behalf of the five children.
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