Litigating equality: a costly business?
5 April 2011
 EWHC 675 (Admin) Read judgment
The Commission for Equality & Human Rights has been ordered to pay costs of court proceedings to two members and a former member of the British National Party. Although the decision is a technical one relating only to costs of proceedings, it highlights the financial risks which must be borne by those seeking to police and enforce compliance with the requirements of human rights law.
The Equality Act proceedings
In mid 2010, the Commission issued an application to have the Defendants, all of whom either are or were senior members of the BNP, committed to prison for contempt of court. The basis for the application was that the Defendants had breached a court order which they were required to comply with following proceedings brought by the Commission under the Equality Act 2006. Those proceedings had been brought to prevent breaches of the Equality Act in the BNP’s terms of membership, specifically relating to race discrimination. However, the order did not make it clear what “terms of membership” meant. The court found that it would not be right for the Defendants to be committed for contempt on the basis of one of two possible meanings of a court order.
The costs fallout
This decision of Lord Justice Moore-Bick and Mr Justice Ramsey concerned which party should bear the costs of the application to commit. The Defendants wanted the Commission to pay their costs of the application on the indemnity basis and make an interim payment on account. The indemnity basis is one of two possible ways in which costs may be ordered to be paid. On this basis, any doubt about what is reasonable in relation to the amount of costs is resolved in favour of the recipient party. Such a favourable order is made in situations where the conduct of the paying party is outside the norm, due to factors such as inappropriate or unreasonable behaviour. An interim payment is where a portion of the total to be paid is paid earlier than the balance.
The Defendants’ costs application was based on the argument the Commission’s application had not been successful and all the Commission was doing in bringing the proceedings was clarifying the earlier court order and trying to ensure future compliance. The proceedings had therefore been unnecessary. Further, the financial penalty they would suffer if they were not awarded their costs would be out of proportion with any breaches of the order which might have been committed. One of the Defendants had very little or no control over compliance with the order, having left the Party by the time it was made.
The Commission argued that, by acting unreasonably, the Defendants brought the proceedings on themselves. With the benefit of hindsight, it was accepted that there may have been better ways of resolving the ambiguity in the order, but the Defendants did not make clear in correspondence that they disagreed with the Commission’s interpretation. It asked the court to award no costs to either party in relation to the committal proceedings.
Who gets what?
The court noted that before the proceedings had begun, the Defendants had not made clear the particular interpretation of the order to the Commission which they were adopting. Had they done so, the proceedings may not have been embarked on. The Defendants were open to some criticism for this, but it was not ultimately found to have had a great effect on the course of the proceedings.
The Defendant whose involvement was very slight, having left the Party altogether by the time of the order, was entitled to all of her costs. Another Defendant who had some (but really very little) influence over the changes to the BNP’s constitution, was also awarded his costs.
Mr Griffin, the Defendant who had in fact been the driving force in changing the constitution, was ultimately awarded his costs of the application to commit, although his confrontational conduct was taken into account when deciding the matter. This was not sufficiently blameworthy to mean he should not be awarded his costs. However, he had also made an application which had not been pursued once the hearing began, and the Commission was awarded its costs of preparing for that application.
No order for interim costs was made.
Both the Defendants and the Commission sought their costs on the indemnity basis.
Mr Griffin’s application which was not pursued gave rise to the Commission’s costs entitlement, but there was no feature in his conduct in dropping the matter which was sufficiently outside the norm to warrant indemnity costs being awarded.
Similarly, the Defendants argued that in bringing the unsuccessful application to commit the Commission had conducted itself in a way which justified an order for indemnity costs against it. However, the Court did not consider the conduct to be sufficiently unreasonable. Something more than bringing an unsuccessful application would be necessary for such an order to be appropriate.
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