Page 26 - PIC Magazine Autumn Issue 13
P. 26

This article puts the spotlight on
the liability of a litigation friend and infants following Barker v Confiànce Ltd and others [2019] EWHC 1401 (Ch).
 Stephen Goodfellow is a Costs Law specialist at No5 Barristers’ Chambers. Here he examines Costs Orders made against Litigation Friends and Infants.
r Goodfellow examines the High Court judgment on June 5, 2019 where Mr Justice Morgan considered the principle as to the circumstances where a litigation friend can be ordered to pay costs and whether costs should be ordered against the infants themselves.
He believes Barker v Confiànce Ltd is an important judgment as it dispels widely held, but misplaced, beliefs, that a litigation friend is not liable for costs where they represent a defendant and that an infant litigant cannot be liable for costs unless there is gross misconduct or fraud.
In the main proceedings of Barker v Confiànce Ltd, a settlement was agreed, in respect of the provisions
of a trust and sub-trust, with the Trustee (Confiànce) and a test employee beneficiary, who was one of five children. Subsequently, the mother of two of the other children brought an application, as their litigation friend, challenging the settlement and seeking an order that it was not binding on them.
She was not appointed by the court, but acted without a court order under CPR 21.4(3), which provides that if nobody has been appointed by the court... a person may act as a litigation friend if he/she:
Can fairly and competently conduct proceedings on behalf of the child or protected party;
Has no interest adverse to that of the child or protected party; and
Where the child or protected party is a claimant, undertakes to pay any costs which the child or protected party may be ordered to pay in relation to the proceedings, subject to any right he/she may have to be repaid from the assets of the child or protected party.
In the case, the mother failed to give an undertaking pursuant to CPR 21.4 (3)(c). Following three hearings, the application was dismissed, and the respondents sought costs against the mother and the two children.
Initially, a non-party costs order was sought against the mother, however, the court indicated that it was more appropriate to consider an order for costs against the mother on the basis that she was a litigation friend.
The court highlighted that a litigation friend is not a party to the proceedings (para.22), however, precedent does not indicate that the court will join the litigation friend as a party before making an order against them, even though CPR 46.2 requires non-parties are added to the proceedings for the purpose of costs (para.33).
Mr Goodfellow said: “Perhaps surprisingly, the court spent little time addressing this apparent inconsistency before proceeding to consider the costs liability of the litigation friend.”
In a thorough analysis, Mr Justice Morgan set out that it was established by case law, including Slingsby v Attorney-General (1916) 32 TLR 364 (Court of Appeal) and (1916) 33 TLR 120 (House of Lords) and Rutter v Rutter [1921] P 136, that a litigation friend will pay the defendant’s costs for an unsuccessful claim by a child claimant. Further, he found that, although the case law pre-dated the Senior Courts Act 1981 and the CPR, the court could apply this practice (paras. 29 & 30). Under section 51(3) of the Senior Courts Act 1981, the court has full power to determine “by whom and to what extent the costs are to be paid”, whilst pursuant to CPR 44.2(4), “In deciding what order (if any) to make about costs, the court will have regard to all the circumstances.”
The court then rejected the argument that CPR 21.4(3) specifically requires a litigation friend for a claimant to give an undertaking to pay any costs, in the absence of which there is no liability. It was held that the requirement is intended to supplement the general requirements of the CPR and cannot be relied upon to circumvent them.
Mr Goodfellow added: “I believe that this is a practicable and fair interpretation as otherwise a litigation friend could avoid liability for costs through a deliberate failure to comply with the CPR.”
Mr Justice Morgan also rejected the argument that under CPR 21.4(3), a litigation friend can only be made liable for costs when acting for a claimant, thereby precluded a litigation friend being liable for costs when acting for a defendant.

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