19 May 2022

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No “special category” for costs awards in contempt cases

Costs awards in contempt cases, including those involving protests, are subject to the usual rules, CA rules

There is no special category for costs awards in contempt cases, including those involving protests, appeal judges have ruled.

Lord Justice Lewison said “countless unfortunate litigants” had been driven into bankruptcy by costs orders, but that was never a reason not to make or limit them.

Ruling in the case of a protestor against HS2 who broke an injunction restraining trespass into an area of woodland a dozen times, Lewison LJ said: “It is no doubt the case that an award of costs against a defendant may cause hardship. It may affect their credit rating and in some cases may drive a defendant into insolvency.

“Countless unfortunate litigants have been driven into bankruptcy by costs orders made against them.

“But that has never been a reason either to refuse an order for costs in civil proceedings or (save in those cases where the CPR makes specific provision) to limit the amount of costs to an amount which the defendant can in practice afford to pay.”

The Court of Appeal heard in Secretary of State for Transport and another v Cuciurean [2022] EWCA Civ 661 that the High Court granted an injunction against Mr Cuciurean restraining trespass on certain woodland in Warwickshire in March 2020.

At a High Court contempt hearing the following month, Mr Justice Marcus Smith found that Mr Cuciurean had made “12 incursions” into the land and had done so “consciously and deliberately”, with the aim of furthering the protest against HS2.

He received a suspended custodial sentence, the length of which was subsequently reduced. The claimants applied for costs of £39,900, reduced to £25,000.

Counsel for the protestor argued that, in a contempt case where rights to free assembly and free expression were engaged, the judge should have made an order which gave the defendant protection equivalent to an order under section 26 of LASPO.

This would mean any costs ordered would not exceed the amount which it was reasonable for him to pay and the costs order would not have been enforceable without a further court order.

Alternatively, the judge should have regarded both the suspended sentence and the costs order as an interference with Mr Cuciurean’s right to freedom of expression, and considered whether the interference was disproportionate.

On LASPO, Lewison LJ said the grant of legal aid to an alleged contemnor did not fall within the definition of ‘civil legal services’, so the application for committal could not be ‘relevant civil proceedings’ and the protection under section 26 did not apply.

On rights to freedom of expression, the judge said the aim was sufficiently important to justify interference with the rights, since it included the protection of the rights of others, upholding the rule of law and the authority of the judiciary.

When it came to competing rights, what differentiated this case from many of the authorities to which the judges were referred was that here the court “had made an order, of which Mr Cuciurean was aware, protecting land to which the public had no right of access, and spelling out what was not permitted, before he decided deliberately and consciously to break its terms”.

There was also “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”.

Lewison LJ said Mr Cuciurean “was and remains free to campaign against HS2 so long as he does so without breaching the terms of a court order”.

The discretion to award costs was governed by the general principles in the CPR and “contempt cases, even in protest cases, are not in some special category”.

He dismissed Mr Cuciurean’s appeal. Lady Justice Asplin and Lord Justice Edis agreed.

Adam Wagner and Pippa Woodrow (instructed by Robert Lizar Solicitors) for the appellant. Michael Fry and Michael Brett (instructed by DLA Piper) for the respondents.