Symes v Phillips & Ors

On the application of the claimants, Jonathan Phillips and others, the appellant, Robin James Symes, to whom I will refer as the contemnor, was committed to prison by Peter Smith J for two years for contempt of court. On appeal to this court, the sentence was reduced to one year and the judge’s order was in other respects modified in the contemnor’s favour.

The contemnor, who is legally aided, seeks the costs of the appeal. He does not challenge the order for costs against him in the Court below. For the contemnor, Mr Bodnar submits that the claimants unsuccessfully contested the appeal and that costs should follow the event.

For the claimants, Mr Steinfeld QC submits that the contemnor, by his contempt, has brought the entire proceedings on himself by his admitted and serious contempts of court. While the sentence has been reduced on appeal, that is an issue between the contemnor and the court and the claimants should not bear the costs of the appeal. The claimants appeared before this court not to press for a heavy sentence but to assist the court with a consideration of the issues and the conduct of the trial, which was the subject of the complaint on appeal. The claimants’ conduct at the trial has not been criticised in the judgments in this court. Failing that, it is submitted that only a part of the costs should be awarded because the appellant failed on some of the issues raised in the appeal.

The researches of counsel have revealed little material as to whether the approach to costs on a successful appeal by the contemnor in contempt proceedings should be the same as that in any civil appeal or whether a different approach should apply on the ground that the decision as to sentence will often, as in this case, and as in the case of an appeal against sentence in a criminal case, primarily be an issue between the contemnor and the court.

In written submissions following an oral hearing, Counsel have referred to Re W(B) (An Infant) [1969] 2 Ch 50, Enfield London Borough Council v Mahoney[1983] 1 WLR 749 and Harris v Harris [2002] Fam 253 but the cases turned on their own facts. No general statement of principle emerges from them. In Mahoney, the contemnor was ordered to pay the plaintiff’s costs but that issue was not considered in the judgments. In In re Barrell Enterprises [1973] 1 WLR 19 the contemnor obtained from this court her release from custody but was ordered to pay the costs of her application for release. The other parties were the Official Receiver and, as amicus curiae, the Official Solicitor. The decision on this point was not reasoned.

In Knight v Clifton [1971] Ch 700, Sachs LJ, at p718, stated:

“By way of a footnote it should be specifically stated that neither as regards the court’s jurisdiction over costs under section 50 (1) of the [Supreme Court of Judicature (Consolidation)] Act of 1925 nor as regards the nature of the discretion to be exercised under it, is there any difference in principle between proceedings for civil contempt and other inter partes proceedings. In practice, however, upon committal proceedings the court can on the one hand naturally look at the general course to date of the relevant cause of action when assessing what order as to costs should be made and have regard to the extent of any right or title already established, but on the other hand must keep in mind that the liberty of the subject is involved and give that factor special weight.”

I respectfully agree with Sachs LJ that, while there is no difference in principle, factors may be present in contempt proceedings which are not normally present in civil proceedings. Amongst them, in a case such as the present, is the fact that the contemnor, by his admitted contempts of court, has brought the entire proceedings upon himself and is in a weaker position to claim costs as between the parties than most litigants. Another is the need not to deter claimants, who may, as in this case, be in the best position to assist the appellate court as to what happened at the trial, from doing so.

The conduct and outcome of the appeal are of course important considerations. In this case, the appellant has failed in his criticism of some aspects of the judge’s conduct of the trial but has had very substantial success. A considerable proportion of the time at the hearing of the appeal was taken with issues, the Slade proceedings issue (on which there have also been lengthy post-hearing written submissions), the 17 January 2005 interview issue and the unresolved matters issue, on which the claimants attempted, unsuccessfully, to justify the approach of the judge.

I take relevant circumstances into account, including the fact that the liberty of the subject is involved and that the order for costs below is not challenged by the contemnor. I give some weight to the factors mentioned above which favour the claimants. I would exercise the court’s discretion under CPR Part 44.3 to award the contemnor one half of the costs of the appeal, which are to include the costs of the costs issue.

I agree.