Adam Wagner and Pippa Woodrow act in important ruling on costs in protest contempt cases

Judgment was handed down by the Court of Appeal today in (1) Secretary of State for Transport (2) HS2 Ltd. v Cuciurean [2022] EWCA Civ 66, an important judgment on the proper approach to making costs orders 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.

Adam Wagner and Pippa Woodrow were instructed by Nicola Hall of Robert Lizar Solicitors to act of the Appellant.

The Court dismissed the appeal by Mr Cuciurean, ruling that the costs order reduced from £80,000 incurred, and £39,900 claimed, to £25,000 was proportionate. However, in doing so the Court (Lewison LJ, Asplin LJ and Edis LJ) accepted a number of the appellant's arguments and have set out for the first time the detailed proportionality exercise which a court would be "well-advised" to undertake in any contempt case involving costs where the rights to freedom of expression and/or assembly are engaged. The Court ruled, in summary:

  1. Although the judge in the case could not be criticised for not doing so, in future cases a judge would be “well-advised” to follow the structured process set out in the Supreme Court’s judgment in DPP v Zeigler [2020] [2021] UKSC 23, [2022] AC 408 at [16] and [58] for assessing whether an interference with rights is proportionate within the European Convention on Human Rights. This is because a costs order is potentially an interference with Articles 10 and 11 ECHR. In cases of breach of an injunction such as this one some of these questions will have been asked and answered at an earlier stage [7]-[13];

  2. Costs which are proportionate in the Civil Procedure Rules sense will not necessarily be proportionate in the Convention sense although they often will be [48].

  3. The Divisional Court in National Highways Ltd v Heyatawin [2021] EWHC 3093 (QB) (a case relating to Insulate Britain) was wrong to hold that the requirement in the Supreme Court’s decision in Crossland that the combination of costs order and penal sanction must only be considered, for proportionality purposes, when they were both financial. They must also be considered in combination when the penalty is non-financial, e.g. custodial [48].

  4. Generally the means of a contemptor are not relevant to proportionality [53]. It was up to the contemptor to provide satisfactory evidence of his lack of means [58].

  5. The Court went on to apply the structured approach “[t]o the extent that the questions posed by that approach need to be answered at the costs stage” at [64]. The Court appeared to accept the Appellant’s submission that in some cases (although not this one where no sufficient evidence as to means was available to the judge at the time of the costs order) the fact that it was not possible for the Appellant to pay the costs order would break the rational connection between the aim to compensate the claimants for the costs incurred in vindicating their rights and upholding the rule of law, and the means chosen - i.e. the costs order. In this regard the Court held at [64b]:

“There was no adequate material before the judge that would have justified a finding that Mr Cuciurean was so destitute and so lacking in other sources of finance (e.g. from well wishers, crowd funding and the like) that the making of the order was futile. Nor does the fact that the claimants were not “presently” minded to enforce the order make it irrational.”

The Judgment leaves open some issues about how the proportionality exercise will be undertaken in future cases, particularly which questions will already have been answered when the injunction is granted and what evidence will be required to demonstrate that a defendant was “so destitute” that making a costs order would be “futile”, but it is clear authority for the proportion that in future cases involving costs orders against people who breach injunctions whilst exercising their rights to freedom of expression and assembly, a fact-sensitive proportionality exercise should be undertaken to consider whether the costs order, in combination of any sanction already given, would be necessary and justified.

Judgment can be found here.