The Secretary of State for Transport v Elliott Cuciurean
| Jurisdiction | England & Wales |
| Judge | Lady Justice Asplin,Lord Justice Lewison,Lord Justice Edis |
| Judgment Date | 16 May 2022 |
| Neutral Citation | [2022] EWCA Civ 661 |
| Docket Number | Case No: CA-2021-000657 |
| Year | 2022 |
| Court | Court of Appeal (Civil Division) |
[2022] EWCA Civ 661
Lord Justice Lewison
Lady Justice Asplin
and
Lord Justice Edis
Case No: CA-2021-000657
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
BIRMINGHAM DISTRICT REGISTRY
MR JUSTICE MARCUS SMITH
PT-2020-BHM-00001
Royal Courts of Justice
Strand, London, WC2A 2LL
Adam Wagner and Pippa Woodrow (instructed by Robert Lizar Solicitors) for the Appellant
Michael Fry and Michael Brett (instructed by DLA Piper Solicitors) for the Respondents
Hearing date: 5 May 2022
Approved Judgment
This judgment was handed down remotely by circulation to the parties' representatives by email and released to The National Archives. The date and time for hand-down is deemed to be 10am on Monday 16 th May 2022
Introduction
The issue on this appeal is the approach which the court should take when deciding whether to make an order for costs, and if so what order, against a person who has been found to be in contempt of court by disobeying an injunction granted in the context of political or environmental protest.
The facts
Mr Cuciurean is an adamant opponent of HS2. On 17 March 2020 Andrews J granted an order in the form of an injunction restraining trespass on certain woodland in Warwickshire, including an area known as the Crackley Land. The order was made against certain named defendants (not including Mr Cuciurean) and persons unknown. But the effect of the order was that Mr Cuciurean would become bound by the order simply by entering on the Crackley Land. The order contained the usual penal notice which stated that disobedience to the order might be held to be a contempt of court; and could lead to imprisonment, a fine, or seizure of assets. It also contained elaborate provisions about service. On an application for committal for contempt Marcus Smith J found that Mr Cuciurean had made 12 incursions into the Crackley Land between 4 and 14 April 2020; and had done so consciously and deliberately. He also found that Mr Cuciurean knew of the order and that he fully understood that he was not to enter the Crackley Land. His subjective intention in doing what he did was to further the protest against HS2; and to inhibit or thwart the HS2 scheme to the best of his ability.
Having found the contempts established, Marcus Smith J imposed a suspended custodial sanction upon Mr Cuciurean. The length of the sentence was subsequently reduced by this court, but the penalty otherwise stood. At a subsequent hearing, Marcus Smith J ordered Mr Cuciurean to pay the claimants' costs. Although the claimants had put forward the figure of £39,905 as the summary assessment for which they contended, the judge ultimately ordered Mr Cuciurean to pay £25,000. The various judgments are at [2020] EWHC 2614 (Ch) (Liability); [2020] EWHC 2723 (Ch) (Sanction) and [2021] EWCA Civ 357 (the Liability and Sanction Appeal).
With my permission, Mr Cuciurean now appeals. Since the grant of permission to appeal, there have been two cases decided which bear directly on the question in issue, A-G v Crosland and National Highways Ltd v Heyatawin, which I shall come to in due course.
The nature of the appeal
As provided by CPR Part 52.21(1) an appeal is limited to a review of the decision of the lower court. Where, as here, the judge was exercising a discretion in making a costs order, with arguments from competent counsel on each side, a review of his decision is not the occasion for running new points or introducing fresh material. In Samsung Electronics Co Ltd v LG Display Co Ltd [2022] EWCA Civ 423 (a case about service out of the jurisdiction) Males LJ (with whom Snowden LJ and I agreed) put it this way at [5]:
“Further, it is important to say that the function of this court is to review the decision of the court below. The question is whether the judge has made a significant error having regard to the evidence adduced and the submissions advanced in the lower court. Just as the trial of an action is not a dress rehearsal for an appeal (see the well-known metaphor of Lord Justice Lewison in Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5 at [114]), neither is an application to set aside an order for service out of the jurisdiction. In general an appellant will not be permitted to rely on material which the judge was not invited to consider or to advance an entirely new basis for saying that the judge's evaluation on the issue of appropriate forum was wrong. A judge can hardly be criticised for not taking something into account if he was never asked to do so. Although no doubt this principle will be applied with some flexibility, bearing in mind that the ultimate Spiliada question is concerned with “the interests of all the parties and … the ends of justice”, good reason will be required for taking a different approach.”
To similar effect, Lloyd LJ said in Allen v Bloomsbury Publishing plc [2011] EWCA Civ 943 at [17]:
“In our adversarial system of litigation, in a case where each party was professionally represented with plenty of opportunity to formulate and put to the court all points considered to be relevant on a particular point, it seems to me questionable for a judge to be criticised for having failed to take into account a factor which, if relevant, was known or available to all parties and which no party invited him to consider as part of the process of exercising his discretion. It would be one thing if, through inadvertence, the judge overlooked a point of law which should affect his reasoning … but otherwise what is said here is that there was a relevant consideration which the judge failed to take into account. It does not seem to me to be fair either to the judge or to the opposing party or parties for an unsuccessful litigant to be able to challenge the exercise of the court's discretion for failure to take account of a factor which was not in any way hidden and which, if it really is relevant, the exercise of reasonable professional diligence could have brought to light but which was not suggested to the judge as being relevant. This strikes me as being wrong in principle.”
The arguments
Mr Wagner, for Mr Cuciurean, in essence puts forward two arguments. They are said to apply, not in all cases of contempt of court, but in cases where the contemnor's right to free expression and his right to peaceful assembly are engaged, particularly where he exercises those rights by way of protest or in furtherance of some political cause.
First, he says, the judge ought to have made an order which gave Mr Cuciurean protection equivalent to an order under section 26 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (“ LASPO”). The effect of such an order would be (a) that any costs ordered would not exceed the amount (if any) which it is reasonable for the contemnor to pay and (b) the costs order would not be enforceable without a further order of the court.
Alternatively, he says, the judge ought to have regarded both the formal sanction (i.e. the suspended sentence) and also the costs order as together amounting to an interference with Mr Cuciurean's right to freedom of expression; and to have asked himself whether, taken together, the interference was disproportionate.
Underpinning Mr Wagner's argument was his submission that at every stage of the proceedings, the court had to ask itself and answer the questions formulated by the Divisional Court in DPP v Zeigler [2019] EWHC 71 (Admin); [2020] QB 253 and approved by the Supreme Court on appeal: [2021] UKSC 23, [2022] AC 408 at [16] and [58]:
“(1) Is what the defendant did in exercise of one of the rights in articles 10 or 11?
(2) If so, is there an interference by a public authority with that right?
(3) If there is an interference, is it ‘prescribed by law’?
(4) If so, is the interference in pursuit of a legitimate aim as set out in paragraph 2 of article 10 or article 11, for example the protection of the rights of others?
(5) If so, is the interference ‘necessary in a democratic society’ to achieve that legitimate aim?”
The last question can be broken down into sub-questions:
“That last question will in turn require consideration of the well-known set of sub-questions which arise in order to assess whether an interference is proportionate:
(1) Is the aim sufficiently important to justify interference with a fundamental right?
(2) Is there a rational connection between the means chosen and the aim in view?
(3) Are there less restrictive alternative means available to achieve that aim?
(4) Is there a fair balance between the rights of the individual and the general interest of the community, including the rights of others?”
It is necessary to consider these questions at every stage, he says, because in Zeigler the Supreme Court said at [57]:
“Article 11(2) states that “No restrictions shall be placed” except “such as are prescribed by law and are necessary in a democratic society”. In Kudrevicius v Lithuania (2015) 62 EHRR 34, para 100 the European Court of Human Rights (“ECtHR”) stated that “The term ‘restrictions’ in article 11(2) must be interpreted as including both measures taken before or during a gathering and those, such as punitive measures, taken afterwards” so that it accepted at para 101 “that the applicants' conviction for their participation in the demonstrations at issue amounted to an interference with their right to freedom of peaceful assembly”. Arrest, prosecution, conviction, and sentence are all “restrictions” within both articles.”
Let me say at once that the judge did not follow this structured approach to his costs order. The reason is a simple one. He was not asked to. Nor was this...
To continue reading
Request your trial
-
High Speed Two (HS2) Ltd v Four Categories of Persons Unknown
...upon me. The point raised by D6 was specifically dealt with by the Court of Appeal in Secretary of State for Transport v Cuciurean [2022] EWCA Civ 661, [28]: “28. As is so often the case, there are rights that pull in different directions. It has also been authoritatively decided that ther......
-
Sofia Bogolyubova v Gennadiy Bogolyubov
...such discretion very widely.” ii) In The Secretary of State for Transport, High Speed Two (HS2) Limited v Elliott Cuciurean [2022] EWCA Civ 661, Lewison LJ said: “66. An award of costs is an exercise of discretion by the judge. Since the judge has a wide discretion, it is well-settled that......
-
HM Attorney General v Dowie
...and proportionality; contempt cases were not in some special category, applying Secretary of State for Transport v Cuciurean[2022] EWCA Civ 661, following Attorney-General v Crosland[2021] UKSC 15, in which it had been held that costs would normally follow the event in committal proceedings......
-
HS2 (High Speed Two Ltd) v Elliott Cuciurean (D33) and Others
...father of Rory Hooper, D31 in these proceedings. 60 I also take into account the decision of the Court of Appeal in HS2 v Curciurean [2022] EWCA Civ 661 in relation to costs 61 I also take into account the decision of the Court of Appeal in HS2 v Cuciurean [2021] EWCA Civ 357 in relation ......