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England and Wales High Court (Chancery Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Barker v Confiance Ltd & Ors  EWHC 1401 (Ch) (05 June 2019)
Cite as:  Costs LR 939,  1 WLR 5737,  WLR(D) 317,  EWHC 1401 (Ch),  WLR 5737
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BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
PROPERTY TRUSTS AND PROBATE LIST (ChD)
Rolls Building, Fetter Lane, London, EC4A 1NL
B e f o r e :
| IAIN PAUL BARKER
|- and -
EUAN BARKER (a child by his litigation friend DEBORAH BARKER)
TOM BARKER (a child by his litigation friend SUSAN MARY GLOVER)
FREYA BARKER (a child by her litigation friend SUSAN MARY GLOVER)
ALISON MEEK (former litigation friend to EUAN BARKER)
LAUREN CHADWICK (a child)
ROWAN BARKER (a child by his litigation friend DEBORAH BARKER)
Elspeth Talbot Rice QC and Emer Murphy (instructed by Reynolds Porter Chamberlain LLP) for the First Defendant
Constance McDonnell QC (instructed by Withers LLP) for the Second Defendant and Rowan Barker
James MacDougald (instructed by Harcus Sinclair LLP) for Ms Meek
Daniel Saoul QC and Stephen Hackett (instructed by Candey Ltd) for the Applicants and Ms Glover
Hearing date: 16 April 2019
Crown Copyright ©
The Hon Mr Justice Morgan:
The main proceedings
The application of 27 June 2017
i) an order adding Tom and Freya as Defendants to the main proceedings;
ii) an order lifting a stay of the main proceedings, which stay had been ordered on 25 July 2014;
iii) an order revoking or varying the order of 25 July 2014 which approved a settlement of the main proceedings;
iv) an order directing that the order of 25 July 2014 approving the settlement of the main proceedings was not binding on Tom and Freya.
"(3) If nobody has been appointed by the court or, in the case of a protected party, has been appointed as a deputy as set out in paragraph (2), a person may act as a litigation friend if he
(a) can fairly and competently conduct proceedings on behalf of the child or protected party;
(b) has no interest adverse to that of the child or protected party; and
(c) 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 may have to be repaid from the assets of the child or protected party."
The present applications
The position of a litigation friend
Halsbury's Laws, Vol 10
A litigation friend for a child claimant
"by the uniform practice of all the Courts the prochein amie is liable to costs."
A litigation friend for a child defendant
"A litigation friend is not liable to pay the costs of an unsuccessful defence unless he has been guilty of gross misconduct."
The footnote to this statement cites Morgan v Morgan (1865) 11 Jur NS 233 and Vivian v Kennelly (1890) 63 LT 778. The footnote also cites Rutter v Rutter  P 136 at 141-142 in a way which suggests that this case might not support the statement in the text.
"The question is whether a guardian ad litem becomes liable to costs by raising such a defence as would, upon the authority of Bamford v Bamford, make an adult defendant so liable. I will ascertain, through the registrar, whether there is any fixed practice upon this subject and, if there is none, I must decide upon what I think the practice ought to be."
"I have looked into the question, and I think it is impossible in this case to order the guardian ad litem to pay these costs. I do not mean to say there could not be such a case of gross misconduct as to render him liable to do so, but that is not the case here; and [the widow] is much in the same position as a plaintiff suing a pauper defendant. Each party, according to the ordinary rule in dower suits, will bear his own costs."
Who is a claimant and who is a defendant?
Conclusion as to the liability of a litigation friend for costs
Orders for costs in favour of a litigation friend
How should the discretion as to costs be exercised?
i) the conduct of the other parties in relation to the exclusion of Tom, Freya and Ms Glover from the main proceedings brought by Mr Barker and from the hearing before Asplin J was such that the court should not order Ms Glover to pay any of the costs of any of the other parties;
ii) when the application of 27 June 2017 was made it was initially "legally sound" and it was not until 30 July 2018, when the Supreme Court refused permission to appeal against the decision of the Court of Appeal dated 8 December 2017 (in the negligence proceedings which Mr Barker had brought against Mr Baxendale-Walker), which reversed the decision of Roth J dated 23 March 2016, that the position changed in a way adverse to the success of the application;
iii) Confiānce should not have its costs because it should not have incurred them but instead it should have remained entirely neutral on the application of 27 June 2017;
iv) Ms Glover would suffer hardship if an order for costs were made against her.
The relevant conduct
i) rule 44.2(4) directs the court to have regard to all the circumstances including the conduct of all the parties;
ii) rule 44.2(5) states that "the conduct of the parties" includes certain matters; the first of the specified matters is conduct before, as well as during, the proceedings and particular reference is made to the use of pre-action protocols; other matters specified in rule 44.2(5) appear to relate to conduct in the course of the proceedings.
" was entitled to consider any relevant aspect of the conduct of the parties, whether it related to their conduct in relation to the matters that gave rise to the litigation, or to their conduct in the period that led up to the issue of proceedings, or to their conduct in the proceedings themselves."
"28. It is clear from the documents on Ms Meek's file that neither Ms Glover, the mother of Tom and Freya, nor Tom and Freya themselves, were told of the proposed claim by Mr Barker nor about the proposed settlement. They were not told that Euan was to be appointed as a representative for Tom and Freya and that Euan's litigation friend would be advised by counsel as to the suitability of the proposed settlement. It is also clear from those documents, that the omission to inform Ms Glover or Tom and Freya was deliberate. The decision not to inform her seems to have reflected the wishes of Mr Barker and Deborah Barker. Ms Meek, Mr Barlow and Mr Dew knew that Ms Glover and Tom and Freya had not been informed of what was happening and either supported the decision to keep them in the dark or did not oppose the implementation of that decision. It is also clear that Ms Glover and Tom and Freya were not informed of what was happening because it was foreseen that Ms Glover would "cause problems", to quote an email from Mr Dew to Ms Meek and Mr Barlow on 9 April 2014. On 20 June 2014, Ms Meek expressed the view to Mr Barlow and Mr Dew that Ms Glover, if she was aware of what was proposed, might create a "degree of contention".
29. In the present application, I was provided with a witness statement of Mr Rands, a solicitor acting for Mr Barker. Mr Rands did not act for Mr Barker at the time of the claim to recover the assets of the Trust and the Sub-Trust. However, Mr Rands sought to explain why Euan had been chosen to be the only child who was made a party to the proceedings. Mr Rands suggested that there were a number of reasons for this choice and included the explanation that, at the time of the proceedings and since, Ms Glover harboured considerable animosity against Mr Barker and if Tom and Freya had been involved in the proceedings, Ms Glover would have tried to become their litigation friend and possibly litigation friend for all the children. Mr Rands suggested that Ms Glover would not have been suitable as a litigation friend as she would have been influenced by her personal feelings towards Mr Barker rather than a desire to act in the best interests of the absent family beneficiaries."
i) Tom, Freya and Ms Glover were deliberately not told of the proceedings brought by Mr Barker;
ii) they were not involved in the negotiations for the settlement of those proceedings;
iii) they were not told that Euan was appointed as a representative defendant for Tom and Freya;
iv) when the court was asked to appoint Euan as a representative defendant and to give its approval to the settlement of the proceedings, it was not told that Tom, Freya and Ms Glover were not aware of the proceedings or of the settlement;
v) the reason why this occurred was because Mr Barker did not want to have Ms Glover involved in the proceedings, the settlement or the application to the court; he must have considered that if she were involved, matters would not proceed in the way in which he wished them to proceed or, at any rate, would not proceed smoothly.
Was the application initially legally sound?
Should Confiānce have remained neutral?
Conclusions as to Ms Glover
The application for non-party costs orders
The liability of Tom and Freya for costs
"[a] child claimant is not liable personally for the costs of legal proceedings unless, after attaining full age, he elects to continue the proceedings or obtain an order for their discontinuance."
"[a] child defendant has not usually been ordered to pay costs unless he has been guilty of fraud; but on a petition for divorce, a child respondent or co-respondent may be condemned in costs."