Contempt proceedings are weird. They sit at the intersection of the civil and criminal jurisdictions and borrow features from both, while fitting comfortably into neither. The more of this type of work I have undertaken, the clearer it has become that costs are one of the strangest aspects of all.
Earlier this month, the Supreme Court granted permission to appeal against the Court of Appeal’s decision in Turk v Legal Aid Agency [2026] EWCA Civ 469, which allowed the Legal Aid Agency to ask the court to impose recovery of defence costs orders (RDCOs) on legally aided contempt defendants. However, this follows a number of decisions on costs in these types of proceedings which, in my view, have created an incoherent and inconsistent system for defendants.
It therefore comes as no surprise that this is something the Law Commission is looking into.
Contempt proceedings are mostly prosecuted in the civil courts. They can result in imprisonment. Defendants receive criminal legal aid. The criminal standard of proof applies. Yet when it comes to costs, the courts have largely continued to apply ordinary civil principles under CPR 44.
For years, that ill-fitting reality attracted relatively little attention. More recently, however, a series of decisions has exposed just how complicated matters can be in practice. They all point towards the same underlying question: have contempt defendants fallen into a gap between the civil and criminal costs regimes?
Winning the contempt proceedings but losing the costs argument
The first signs of the problem emerged in cases involving successful defendants. In ordinary civil proceedings, a party who successfully defeats litigation can expect to recover a substantial proportion of their costs. That principle serves an obvious purpose. It compensates successful parties and discourages weak claims.
However, the position becomes more complicated when the successful party in civil legal proceedings is represented under criminal legal aid. The leading authority on this is Liverpool Victoria Insurance Company Ltd v Khan, in which the court decided that, unlike the position where a party receives civil legal aid and the indemnity principle is expressly disapplied, successful legally aided contempt defendants can recover inter partes costs only at legal aid rates, thereby reducing the costs consequences facing unsuccessful claimants.
Those concerns came before the appeal court again this year, in McGivern v MBR Acres Ltd. The background to this case was striking. Nicklin J had described the contempt application against Ms McGivern as ‘totally without merit’ and awarded costs on the indemnity basis. Yet despite that finding, both the costs judge and the High Court concluded that recovery remained limited to legal aid rates.
However, the appeal court disagreed. Importantly, it did not conclude that the indemnity principle no longer applied. Rather, it held that a CFA-lite arrangement that Ms McGivern had entered into created a genuine contractual liability to her solicitors, sufficient to satisfy the principle. Under that retainer, she became liable for her solicitors’ ordinary charges, but only to the extent that those costs were successfully recovered from the opposing party. Recovery was therefore not confined to legal aid rates.
The most revealing passage in the judgment came from Bean LJ, who observed that if the paying party’s argument were correct then Nicklin J’s indemnity costs order would effectively have been ‘spitting into the wind’.
The decision will undoubtedly be welcomed by practitioners acting for defendants. At the same time, however, it highlights something rather unusual. A person who successfully defeats allegations carrying the possibility of imprisonment may require carefully structured CFA-lite arrangements, simply to recover costs at rates that would be entirely routine in ordinary civil litigation, or if they were in receipt of civil legal aid.
If Khan and McGivern concerned successful defendants, Cuciurean focused attention on those who lose.
The appeal arose from contempt proceedings brought against an anti-HS2 protester who had breached an injunction. Having found him in contempt and imposed a suspended custodial sentence, the court ordered him to pay £25,000 towards the claimant’s costs.
The argument advanced on appeal was straightforward. If recipients of civil legal aid benefit from the protection afforded by section 26 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, why should legally aided contempt defendants be treated differently?
Section 26 protects recipients of civil legal aid by limiting their liability for adverse costs to an amount which it is reasonable for them to pay. The court must consider matters such as means, resources and conduct. It is an important protection for vulnerable litigants.
The difficulty is, as noted above, that contempt defendants do not receive civil legal aid. They receive criminal legal aid. That distinction proved decisive.
The appeal court accepted that a genuine gap existed. Indeed, it referred to earlier observations by HHJ Lewis in Chief Constable of Essex Police v Douherty, where he described the situation as a ‘lacuna’. As he observed, there are mechanisms protecting defendants in criminal proceedings and legally aided parties in civil proceedings, but not defendants facing civil committal proceedings.
Nevertheless, Lewison LJ concluded that the problem could not be solved by the courts. The statutory framework simply did not extend section 26 protection to contempt defendants, and any change would have to come from parliament or the Rules Committee.
In my experience, the practical consequences can be considerable. One former client of mine was a young woman in her early 20s who admitted contempt at the first available opportunity. The court imposed a custodial sentence but suspended it. Unsurprisingly, the finding itself had serious consequences for her future career.
That, however, was not the end of the story. Costs were ordered against her and have since been assessed at more than £60,000. She has no realistic prospect of paying them. Whatever view readers may take of her underlying conduct, it is difficult not to ask whether that financial burden serves any useful purpose. The custodial sentence has long since expired. The costs liability remains.
It was cases such as this that first made me wonder whether contempt defendants had somehow slipped through the cracks between the civil and criminal systems.
Enter Turk
Against that background came Turk v Legal Aid Agency.
The issue before the Supreme Court, as below and on which permission has been granted, is whether defendants to civil contempt proceedings can be required to repay the costs of their publicly funded representation through a RDCO.
The significance of the appeal lies partly in its novelty. Despite defendants in civil contempt proceedings receiving criminal legal aid since 2013, this appears to have been the first occasion on which the Legal Aid Agency sought an RDCO in such proceedings. There was apparently not even a standard High Court means form available for the exercise, requiring one to be created specifically for the case.
At first instance, Mann J concluded that the RDCO regime applied and ordered Mr Turk to repay £392,823.70. The court of appeal upheld that conclusion.
Viewed narrowly, the appeal concerns statutory interpretation. Viewed more broadly, it raises a much bigger question.
Defendants to contempt proceedings already occupy a highly unusual position. They receive criminal legal aid because contempt proceedings involve the determination of a criminal charge for Article 6 purposes. Yet they remain subject to ordinary civil costs rules.
The result is difficult to ignore. The successful defendant may face arguments about recovering costs at commercial rates. The unsuccessful defendant remains exposed to ordinary adverse costs orders. And, subject to the outcome of the Supreme Court appeal, defendants may also face liability to repay the cost of their publicly funded representation.
Any consideration of the issue must be undertaken in the wider context. Contempt defendants already occupy a unique position within the costs system. They may face adverse costs orders on a commercial basis, while the authorities discussed above demonstrate the complexities that can arise when their own representatives seek to recover costs.
Taken individually, these issues may appear manageable. Taken together, they begin to paint a rather different picture. It is easy to see why some practitioners regard this as the ‘worst of both worlds’. Whether or not the Supreme Court ultimately agrees with that characterisation, there is obvious force in the argument that contempt defendants have found themselves in a category of their own: criminal for legal aid purposes, but civil for inter partes costs purposes.
Time for a more coherent approach?
What is perhaps most telling is that the courts are not the only bodies grappling with these issues.
Although published before the Court of Appeal decisions in Turk and McGivern, the Law Commission’s review of contempt law also identified the issues discussed above.
Its provisional conclusion was clear: the current position represents an anomaly which should be addressed. It therefore proposed extending section 26-style protection to legally aided defendants facing contempt proceedings in the civil courts.
Under the commission’s proposal, costs ordered against a legally aided defendant would be limited to the amount that it is reasonable for them to pay, taking account of all the circumstances, including their means and conduct.
That proposal will no doubt divide opinion, and not without reason. Claimants bringing contempt proceedings often incur substantial costs investigating and proving serious wrongdoing. They may reasonably ask why they should be unable to recover those costs from a defendant whose contempt has been established. Equally, many defendants will have engaged in conduct that plainly merits sanction.
Yet there is another side to the argument. The rationale behind section 26 has never been that legally aided litigants should be immune from costs consequences. Rather, it reflects a recognition that access to justice is undermined if publicly funded parties face unlimited financial exposure.
The commission’s concern appears to be that contempt defendants are currently excluded from that protection not because of any considered policy decision, but because they sit awkwardly between two systems which were never designed with them in mind. That concern feels increasingly difficult to dismiss.
Viewed individually, Khan, Cuciurean, McGivern and Turk are all relatively technical costs decisions. Viewed together, they tell a different story. They reveal a jurisdiction wrestling with the consequences of treating contempt as criminal for legal aid purposes and civil for costs purposes.
The Law Commission appears to think there is now an anomaly that needs to be addressed. The Supreme Court clearly considers that the issues raised in Turk merit consideration at the highest level.
Whether the Supreme Court’s decision in Turk, the commission’s proposals, or some combination of the two ultimately leads to reform remains to be seen. What seems much harder to dispute is that contempt defendants occupy an unusual position within the costs system, enjoying neither the protections afforded to legally aided civil litigants nor the regime that applies in criminal proceedings.
For many contemnors, any custodial sentence will eventually expire. The costs consequences may not. That is why the debate now before the Supreme Court, and under consideration by the commission, matters.
Marc Livingston is a solicitor and higher court advocate at Janes Solicitors, London. He represents the appellant, Selman Turk in these proceedings, instructing Roger Mallalieu KC of 4 New Square, leading Charlotte Elves of Outer Temple
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