Introduction

The case of Glover v. Barker & Ors ([2020] EWCA Civ 1112) addresses critical issues surrounding the liability of litigation friends in family law proceedings, particularly concerning the payment of costs. This case involves Ms. Susan Glover, who acted as a litigation friend for her children, Tom and Freya Barker, in proceedings initiated by their father, Mr. Iain Barker. The central dispute revolves around whether litigation friends should be held accountable for costs incurred by other parties, thereby setting a precedent for future family law cases involving minors and protected parties.

Summary of the Judgment

The England and Wales Court of Appeal concluded that Ms. Glover should not be held liable for the costs of the other parties in the proceedings. The initial High Court judgment had ordered Ms. Glover to bear significant costs based on traditional principles that litigation friends mirror the cost liabilities of the parties they represent. However, upon appeal, the Court of Appeal overturned this decision, emphasizing that such liability should not be presumed and must be assessed based on the specific circumstances of each case. The judgment clarified that litigation friends, especially those representing minors, should not automatically bear costs unless there is evidence of misconduct or a direct benefit to them.

Analysis

Precedents Cited

The judgment extensively reviewed historical and contemporary case law to dissect the responsibilities and liabilities of litigation friends. Key precedents include:

• Dymocks Franchise Systems (NSW) Pty Ltd v Todd [2004] UKPC 39: Established that costs orders against non-parties are exceptional and must be just in the circumstances.
• Metalloy Supplies Ltd v MA (UK) Ltd [1997] 1 WLR 1613: Highlighted that directors are only liable for costs if there is misconduct, protecting the doctrine of separate company liability.
• Slaughter v Talbot (1739) and Beavan v Beavan (1862): Demonstrated the long-standing principle that litigation friends of child claimants are liable for costs.
• Morgan v Morgan (1865) and Reynolds v Mead: Differentiated the liability of litigation friends for defendants, stipulating that liability generally requires misconduct.
• Official Solicitor Cases: Clarified that the Official Solicitor, acting as a litigation friend, typically is not liable for costs unless there is special justification.

Legal Reasoning

The Court of Appeal applied a nuanced approach to determine costs liability, rejecting the High Court's blanket assumption that litigation friends are liable similarly to adult parties. The Court emphasized:

• Discretion Under Section 51 of the Senior Courts Act 1981: Highlighted that costs orders against non-parties, including litigation friends, fall under the court's discretion to ensure justice is served based on case-specific facts.
• Distinction Between Claimants and Defendants: Recognized that litigation friends of defendants should not automatically bear costs unless their actions directly contributed to the costs through misconduct.
• Protection of Vulnerable Parties: Emphasized the need to protect individuals acting as litigation friends for minors from undue financial burdens that could deter suitable individuals from taking on the role.

The judgment also analyzed procedural aspects, noting that the High Court failed to consider the broader policy implications and the unique position of litigation friends representing children defendants.

Impact

This judgment significantly impacts future family law cases by:

• Limiting Liability of Litigation Friends: Establishing that litigation friends, particularly for minors, are not automatically liable for costs unless specific circumstances warrant such liability.
• Guidance for Courts: Providing clearer guidelines on when to impose costs on litigation friends, thereby promoting fairness and preventing unnecessary financial burdens on those representing vulnerable parties.
• Encouraging Suitable Representation: By reducing the risk of mandatory cost orders, the judgment encourages competent individuals to act as litigation friends without fear of disproportionate financial consequences.

Complex Concepts Simplified

Litigation Friend

A litigation friend is a person appointed to represent someone who lacks the capacity to conduct legal proceedings themselves, such as a child or a protected party. The litigation friend handles legal actions on behalf of the individual they represent.

Costs Judgment

The Costs Judgment refers to the court's decision regarding which party is responsible for paying the legal costs incurred during litigation. This includes determining whether the litigation friend should bear these costs.

Section 28 of the Inheritance (Provision for Family and Dependants) Act 1984 (IHTA)

Section 28 of the IHTA dictates conditions under which trusts can be established to benefit certain individuals while excluding others. In this case, Mr. Barker's trust arrangements were scrutinized to determine their compliance with this section.

Senior Courts Act 1981, Section 51

Section 51 of the Senior Courts Act 1981 grants courts discretion to make costs orders in civil proceedings, meaning courts can decide who pays costs based on the circumstances of each case.

Conclusion

The Court of Appeal's decision in Glover v. Barker & Ors marks a pivotal shift in the understanding of costs liability for litigation friends in family law proceedings. By rejecting the assumption that litigation friends of defendants must generally bear costs, the judgment underscores the necessity for courts to evaluate each case's unique circumstances. This ensures that protections are in place for individuals representing minors, fostering a more equitable legal system. The case sets a precedent that litigation friends are not inherently liable for costs, thereby encouraging competent individuals to take on this role without the burden of undue financial risk unless misconduct is evident. This nuanced approach balances the interests of justice with the protection of vulnerable parties within the legal framework.