Iain Paul Barker v Confiànce Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Morgan |
| Judgment Date | 05 June 2019 |
| Neutral Citation | [2019] EWHC 1401 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: HC-2017-001868 |
| Date | 05 June 2019 |
Neutral Citation Number: [2019] EWHC 1401 (Ch)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
PROPERTY TRUSTS AND PROBATE LIST (ChD)
Royal Courts of Justice
Rolls Building, Fetter Lane, London, EC4A 1NL
Mr Justice Morgan
Case No: HC-2017-001868
Adam Cloherty (instructed by Memery Crystal LLP) for the Claimant
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
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
The Hon
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, 5 th 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.
The application of 27 June 2017
On 27 June 2017, Tom and Freya, acting by their mother, Ms Glover, as their litigation friend, applied for various orders, namely:
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.
There was no court order providing for Ms Glover to act as a litigation friend for Tom and Freya. Ms Glover acted as a litigation friend without a court order in reliance on CPR 21.4(3) which provides:
“(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.”
CPR 21.5(3) and (4) required Ms Glover to file and serve a certificate of suitability stating that she satisfied the conditions in CPR 21.4(3). Ms Glover did not at any stage give an undertaking of the kind referred to in CPR 21.4(3)(c). Reference had been made at various stages during the course of the application dated 27 June 2017 to the fact that Ms Glover had not given an undertaking of this kind. For example, on 10 August 2017, the solicitors for Mr Barker wrote to the solicitors for Ms Glover and asked her to give such an undertaking. On 16 August 2017, the solicitors for Ms Glover replied that she was not obliged to give such an undertaking as Tom and Freya were not claimants within CPR 21.4(3)(c).
The application of 27 June 2017 was considered at three separate hearings over four days on 3 October 2017, 30 and 31 July 2018 and 5 October 2018. At an early stage, the relief sought by the application was limited to an order directing that the order of 25 July 2014 was not binding on Tom and Freya.
On 8 November 2018, I handed down judgment dismissing the above application.
The present applications
The present judgment deals, first, with four applications which have been made arising out of the application of 27 June 2017. One of the four applications was made before I handed down judgment on 8 November 2018 and the other three of those applications were made following judgment. The present judgment also deals with applications which were made by some of the parties for orders for costs against Tom and Freya; those applications were dealt with as consequential matters arising from my earlier judgment.
On 23 July 2018, Euan applied for an order that he cease to be a party to the application of 27 June 2017. Euan had initially acted in relation to the application of 27 June 2017 by a solicitor, Ms Meek, as his litigation friend and, by order of 3 October 2017, she was replaced as litigation friend by Euan's mother, Deborah Barker. Euan also applied for an order pursuant to CPR 46.2, that Ms Glover be added as a party to these proceedings for the purposes of costs only and for an order, pursuant to section 51 of the Senior Courts Act 1981, that Ms Glover pay his costs of that application. He further applied for an order that Tom and Freya do pay his costs of the application dated 27 June 2017.
On 27 February 2019, Confiànce Ltd (“Confiànce”) applied for an order pursuant to CPR 46.2, that Ms Glover be added as a party to these proceedings for the purposes of costs only and further applied for an order, pursuant to section 51 of the Senior Courts Act 1981, that Ms Glover pay its costs of the application dated 27 June 2017. As a matter consequential on my earlier judgment, Confiànce also applied for an order that its costs of the application dated 27 June 2017 be paid by Tom and Freya.
On 20 March 2019, Ms Meek (who had been separately joined as a respondent to the application of 27 June 2017) applied for an order pursuant to CPR 46.2(1) that Ms Glover be added as a party to these proceedings for the purposes of costs only. She then applied for an order, pursuant to section 51 of the Senior Courts Act 1981, that Ms Glover pay her costs of the application of 27 June 2017. She also applied for an order that Tom and Freya do pay her costs of the application dated 27 June 2017 but she did not press that application at the hearing in relation to costs.
On 29 March 2019, Mr Barker applied for an order pursuant to CPR 46.2(1)(a), that Ms Glover be added as a party to these proceedings for the purposes of costs only and further applied for an order, pursuant to section 51 of the Senior Courts Act 1981, that Ms Glover pay his costs of the application dated 27 June 2017. Mr Barker did not seek an order for costs against Tom and Freya.
For the purpose of dealing with the applications which are now before me, I will proceed on the basis that anyone reading this judgment will have access to my earlier judgment and I will not therefore repeat or summarise what I there said.
The position of a litigation friend
Ms Glover was the litigation friend for Tom and Freya throughout. Further, Euan acted through a litigation friend, first Ms Meek and then Deborah Barker. The legal...
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