Summary

The court made costs orders against individual animal rights activists who had been named as representative members of a number of animal rights organisations and against whom injunctions had successfully been obtained.

Facts

Following its judgment in the case of Smithkline Beecham Plc v Avery (2009) EWHC 1488 (QB), the court was required to determine costs. The claimant (S) was a group of pharmaceutical companies who had obtained injunctions restraining the defendants (G, W and M), who were members of animal rights organisations, from trespass and harassment. G and M had been named as representative members of 'Stop Huntingdon Cruelty' (SHAC) and W had been named as a representative member of the Animal Liberation Front (ALF). In obtaining the injunctions S had established that it was entitled to them against G, W and M personally. The issue was to what extent G, W and M should pay costs. To some extent the debate was academic: G was serving a substantial prison sentence and both M and W were in receipt of funding from the Legal Services Commission and so had costs protection. Nevertheless, the issues were (i) whether the costs which a defendant should pay should be affected by his representative capacity; (ii) how liability for costs should be split between the defendants; (iii) whether G had needed to be joined in the proceedings and whether it was appropriate to make a costs order against him.

Held

(1) The court was not referred to any authority as to how to deal with costs against a representative defendant. A representation order was simply the means by which the scope of the court's judgment was enlarged to include all those in the class represented. It did not increase the personal liability of the representative. A defendant might resist an injunction against him on the ground that the claimant had not shown grounds for making one against him personally, as was done by both W and M. On the other hand he might resist on the ground that such an order was not appropriate in respect of the class sought to be represented, as was done by W in respect of the ALF, or on the ground he was not an appropriate person, as was done by both W and M. They failed on each point and prima facie should pay the costs. It might in some circumstances be arguable that a representative defendant should not pay the costs for which he became liable as a representative of the class because they were incurred on behalf of the class. That was not, however, arguable in the instant case. (2) It was not appropriate that each defendant pay all the costs. Rather, G was to be liable for 20 per cent, W for 45 per cent and M for 35 per cent. (3) M had been joined in the proceedings as a representative for SHAC because G was in prison and played no part in the trial. Subject to the fact that he decided at the last moment that he would not give evidence, M played a full part at the trial, contesting whether S was entitled to an injunction against him and contesting the making of an order for representation under CPR r.19.6. Every point that might be taken on his behalf was taken. Moreover, his solicitors had not replied to a letter written shortly before the trial asking whether he opposed the grant of a permanent injunction against him personally or whether he would give undertakings in lieu. In all those circumstances it was appropriate for an order to be made against him. (4) Permission to appeal, sought on the basis that it raised matters of principle on which the Court of Appeal had given no definitive ruling, namely the issue of representative orders, was refused.

Costs determined