The Court (Lewison, Edis and Asplin LLJ) has strongly reiterated that contempt cases, even those involving protest, “are not in some special category” as regards costs, and that the general principles in the CPR govern the discretion to award costs in such cases. Thus “as a general proposition the means of the contemnor are not relevant to proportionality”. That approach is “tempered to some extent” in cases engaging Article 10 ECHR by the Supreme Court’s dicta in Crosland [2021] UKSC 58 that the combination of penal sanction with costs order must be proportionate in the Convention sense.
 
However, in considering that question, the Court did not consider that it was necessary for a judge to undertake a lengthy proportionate assessment as argued for by the appellant so long as the issue was duly considered. The Court of Appeal reiterated in this context that it will not readily interfere with a judge’s exercise of their discretionary power to award costs.
 
Moreover, in contempt cases, (including those engaging Articles 10 and 11), the Court emphasised that the following factors are highly likely to mean that an order that a contemnor pay the claimant’s reasonable and proportionate (in a CPR 44 Part 44 sense) costs of the application for committal will be proportionate in the Convention sense:
 
(i)             In devising the terms of the injunction that has been shown to be breached, “the court will already have considered the question of interference with rights under Article 10 and 11 to the extent it was necessary to do so”;
 
(ii)            A claimant for committal has previously sought and obtained the protection of the court to protect and enforce their own rights by injunction, and “in order to vindicate those rights they have been compelled to incur legal costs” by seeking committal for breaches of injunction. In doing so, they are “seeking to uphold both the rule of law and the authority of the court”; and
 
(iii)           The court’s sanctions for contempt “do not directly benefit or compensate the applicant for committal. Only the costs award does that. Not to award the claimants their costs reasonably and proportionately incurred in vindicating their rights would be to derogate from those rights”.
 
The Court also took the opportunity to reject decisively two arguments raised by the appellant:
 
(i)             By reference to a County Court judgment in Chief Constable of Essex Police v Douherty [2020] EW Mic 9 (CC), that there was a ‘lacuna’ in the law relating to legal aid and that section 26 LASPO should in effect be applied by judges in contempt cases; and
 
(ii)            That the approach adopted to awarding costs in criminal prosecutions should also apply in contempt proceedings, including the need to take into consideration a defendant’s means in calculating the amount of costs to be paid.
 
Michael Fry and Michael Brendan Brett acted for the Respondents, the Secretary of State for Transport and High Speed Two Ltd, instructed by Rob Shaw of DLA Piper