Court Of Appeal Rule That High Court Judge Was Wrong Make A Costs Order On Litigation Friend

Barker v Confiance Ltd and others [2020] EWCA Civ 1112

The background to this case is complicated and not particularly relevant to in the wider sense. The only pertinent point is that the Appellant in the case acted as a litigation friend for children who were the Defendants in a Trust claim.

What was decided in the first instance?

The first instance Judge came to the conclusion that there are no special rules that apply to a Defendant’s litigation friend and that they should be treated as if they were a defendant.

As a result, the first instance Judge made a costs order against the Appellant as a litigation friend of the Defendants.

The Appellant appealed this order and asked the Court of Appeal to decide whether the first instance Judge had taken the correct approach when deciding that he, as a litigation friend, would be personally liable for the costs.

What did the Appellant argue?

The Appellant argued that an order ought not to be made against a defendant’s litigation friend unless there has been some kind of misconduct. The Appellant pointed out that if a defendant’s litigation friend were placed at a significant risk when it comes to costs it would deter people in the future from accepting the role.

Further, the Appellant argued that CPR 21.4(3)(c) requires a litigation friend for the claimant to provide an undertaking as to costs and there is no similar provision for a litigation friend for the defendant.

What did the Court of Appeal decide?

The Court of Appeal (whilst not specifically stating so) seem to have worked on the basis that an order against a litigation friend is a form of non-party costs order.

The Court of Appeal did not agree with the first instance Judge that there is some general principle that a defendant’s litigation friend should be liable for costs as the child would normally be required to pay.

Within their judgment, the Court of Appeal found that there is no presumption that a defendant’s litigation friend should bear the costs which the defendant would have been ordered to pay. The Court agreed with the Appellant’s reasoning and confirmed that where there is some question as to conduct, the litigation friend may be held responsible for costs personally.

Further, when deciding whether a costs order should be made against a litigation friend the Court need to consider:

“whether in all circumstances it is just to make the order”.