Costs

Right to fair trial - court ordering payment of outstanding costs as condition of proceeding at first instance - impairment of right of access to court

Ford v Labrador: PC (Lord Hope of Craighead, Lord Rodger of Earlsferry and Sir Philip Otton): 22 May 2003

The claimant, having lost her appeal against the striking out of part of her action for libel, was ordered by the Chief Justice of Gibraltar, sitting as a judge of the Court of Appeal, to pay 8,752 in costs incurred in the interlocutory proceedings as a condition of proceeding with so much of her claim as was allowed to stand.

She petitioned the Privy Council for, among other things, a stay of execution.

The claimant in person; the defendant did not appear and was not represented.

Held, granting the petition, that the right of access to the court under section 8(8) of the Gibraltar Constitution Order in Council 1969, which guaranteed the same rights as article 6(1) of the European Convention on Human Rights, could be subject only to such limitations as did not impair the very essence of the right; that to order a claimant to pay security for costs or outstanding costs as a condition of proceeding at first instance involved a greater risk of impairing their right of access to justice than would such an order at the appeal stage, and therefore, the court should adopt a more lenient approach towards the claimant; and that in failing to consider such factors as the amount of the costs bill, whether it was properly assessed, the claimant's ability to pay and the phase of the proceedings at which the restriction was imposed, the Chief Justice had acted in contravention of section 8(8).

(WLR)

Petition to wind up company dismissed - petitioner inviting court to reserve costs issue until trial of summary judgment proceedings against company - costs to follow event unless exceptional circumstances shown

GlaxoSmithKline Export Ltd v UK-(Aid)-Ltd: ChD (Mr Justice Blackburne): 15 May 2003

After the court had dismissed a petition to wind up a company on the ground that the company had advanced a defence of substance to the debt on which the petition had been based, the petitioner invited the court to reserve the question of costs until the hearing of summary judgment proceedings under the Civil Procedure Rules 1998 (CPR), part 24, which it intended to bring in order to establish its claims.

The basis for the application was that the assertions relied on by the company to dismiss the petition could be, at the trial, revealed to be false and the petitioner should not have to bear the costs incurred by the company.

However, the petitioner had adopted a high-risk strategy since it had been aware of the company's stance before launching the petition.

Jonathan Lopian (instructed by Addleshaw Goddard) for the petitioner; Mark Arnold (instructed by Bates Wells & Braithwaite) for the company.

Held, refusing the application, that there could be exceptional circumstances in which the ordinary principle that costs followed the event, applicable to contested winding-up proceedings where the petitioner failed, did not apply; but that there were no exceptional circumstances in the instant case since issues of credibility often arose in contested winding-up proceedings and it was a common occurrence that such issues were only resolved at trial; and that, accordingly, the normal costs order would apply and the petition would be dismissed with costs.