The Commission for Equality & Human Rights v Griffin & Ors

On 7^th June 2010 the Commission issued an application in the Central London County Court for an order that the defendants be committed to prison for contempt and for other relief, including the sequestration of the assets of the British National Party (“the BNP”). The principal basis of the application was that they had allowed certain provisions identified in the order made by His Honour Judge Collins C.B.E. on 12^th March 2010 in proceedings brought by the Commission under the Equality Act 2006 to form part of version 12.2 of the BNP’s constitution, although other breaches of the order were also alleged. Judge Collins directed that the matter be transferred to the High Court and that the Commission file a fresh application notice. That was done on 21^st July 2010.

On 11^th August the first defendant, Mr. Griffin, issued an application for an order that the order made by Judge Collins on 12^th March 2010 be struck out, or that the defendants be discharged from any obligation to comply with it. He also sought an order that the copy of the BNP’s constitution that had been exhibited to an affidavit sworn by Glynis Craig in support of the Commission’s application be excluded from the evidence before the court at the hearing.

On 7^th September 2010 the matter came before Nicola Davies J., who gave directions for the hearing of the Commission’s application. She also directed that Mr. Griffin’s application be heard on the same occasion but immediately before the Commission’s application.

The two matters were listed for hearing by us on 8^th November 2010. When they were called on Mr. Reade Q.C. informed us that Mr. Griffin did not wish to pursue his application and so Mr. Allen Q.C. proceeded to open the Commission’s case. As a result, it became unnecessary for us to read the voluminous evidence that had been prepared by Mr. Griffin in support of his application.

By the end of the first day’s argument it had become apparent that the central issue in the case was whether the amendments that had been made to the BNP’s constitution in the form of version 12.2 were sufficient to comply with the order made by Judge Collins. We indicated as much to counsel and it was agreed that we should proceed to determine that question as a preliminary issue. We delivered judgment on 14^th December 2010 and as things have turned out our decision did bring an end to the proceedings, save in relation to costs. This judgment contains the court’s decision on costs.

The defendants seek an order that the Commission pay their costs of the committal application on the indemnity basis and make an interim payment on account. They say that not only did they succeed in defeating the Commission’s application, but that the proceedings were unnecessary if all that it was seeking to achieve was to clarify the judge’s order and ensure that it was complied with in the future. They also say that if they are not awarded their costs they will suffer a penalty out of all proportion to any breaches of the order which they might have been committed and which, because they were no longer of any significance, the Commission did not seek to pursue. That is said to be particularly so in the case of Ms. Lumby, who had little or no control over the steps that were taken to comply with Judge Collins’ order. Even Mr. Darby had little influence over changes to the constitution.

The Commission says that it should not be required to pay the defendants’ costs of the committal application and seeks an order against Mr. Griffin in respect of the costs of his application. It has pointed out that the order made by Judge Collins was agreed between counsel and submits that the defendants must have understood it to prohibit the objectionable clauses from being retained in connection with the exercise of membership rights as well as in connection with admission to membership. It says that insofar as the order was open to different interpretations, no one on the defendants’ side suggested in correspondence that its effect was not that which the Commission understood it to be. Indeed, it has pointed out that the defendants went so far as to allege that their lawyers had exceeded their authority in agreeing to it. The Commission accepts that with the benefit of hindsight there may have been better ways of resolving any ambiguity in the order, but has pointed out that they could not be pursued unless and until a potential ambiguity had been identified. In other words, the Commission says that by acting unreasonably the defendants brought the proceedings on themselves. In those circumstances the Commission says that the court should order Mr. Griffin to pay its costs of his application and should make no order for costs in relation to the committal proceedings, or alternatively make no order for costs in both sets of proceedings.

It is convenient to deal first with the costs of Mr. Griffin’s application. It is no doubt true that it was issued in response to the committal proceedings, but it raised quite different issues and therefore needed to be addressed separately. It was made clear at the outset of the hearing that it would not be pursued, so it cannot be said that it was abandoned only because the committal proceedings had taken a particular turn. When Mr. Allen Q.C. opened the case he did so on the basis that there were existing and continuing breaches of the judge’s order which called for punishment in the form of the committal of the defendants and the sequestration of the BNP’s assets. Mr. Reade says that Mr. Griffin did not abandon his application and that it was merely “parked” (whatever that may mean), but the order made by Nicola Davies J. provided that it should be heard before the Commission’s application, no doubt because if it were successful the committal proceedings would have ground to a halt. In those circumstances the only conclusion that can properly be drawn, in our view, is that Mr. Griffin did not consider that there was sufficient advantage to be gained from pursuing his application. In those circumstances we think that the Commission should have its costs of dealing with it. However, we do not think that the case calls for an order that the costs be paid on the indemnity basis.

More difficult questions arise in relation to the costs of the committal proceedings themselves, but we start from the fact that the defendants were successful and on that ground alone have a claim to recover their costs. It is, of course, necessary to have regard to what gave rise to the proceedings and how they were conducted, but in the end the application failed because the defendants were successful in persuading us that the more limited construction of the judge’s order which they put forward was correct. That argument was not clearly raised before proceedings were issued. Had it been, the issue could probably have been resolved in a more efficient and less costly manner.

The fact that the argument did not emerge clearly until after committal proceedings had been started was due to a number of matters. We do not doubt that the Commission thought that Judge Collins’ order had the effect for which it contended at the hearing and it may be that counsel who appeared for the defendants when the order was made thought so as well. However, the context in which it was made pointed quite strongly to the narrower construction which we preferred. The defendants’ assertion that their lawyers had exceeded their authority may have betrayed a recognition that it had, or might have, the wider effect for which the Commission was contending, but may equally have reflected a desire to raise an additional line of defence. The amendments which Mr. Griffin made to the constitution immediately after the order had been made suggest that he, at least, thought that it was of more limited effect. The defendants’ response to the application was handled initially by Mr. Griffin personally. He did raise the issue of ambiguity in a lengthy and rather diffuse skeleton argument served early in September 2010, but by then it was too late to alter the course of the proceedings. We accept that some criticism can be made of the way in which defendants responded to the Commission, but we do not think that it affected greatly the course of the proceedings.

We do accept, however, that Ms Lumby’s involvement in the proceedings was at best peripheral. She was joined only because she was National Nominating Officer of the BNP at the time the proceedings were started in August 2009, but she resigned from that position in September 2009 and left the party altogether in July 2010, having , as far as we can see, taken no part in them or in the skirmishing between the Commission and the BNP which took place following the judge’s order. In our view she is entitled to recover the whole of her costs from the Commission.

Mr. Darby is in a slightly different position. He was deputy chairman and treasurer of the BNP at the time the proceedings were started, but resigned from the position of treasurer shortly afterwards in September 2009. He did, however, remain as deputy chairman until the end of June 2010 and on the face of it, therefore, might be expected to have had greater influence over the way matters developed in the weeks immediately following the judge’s order. However, we are satisfied that in reality he wielded little if any real influence over Mr. Griffin, who was the driving force behind the changes to the constitution, or over the party as a whole when it came to deciding whether to adopt them. Nor, in our view did he exercise any significant degree of influence over the attitude that Mr. Griffin or the BNP took to these proceedings. We therefore think that he should also be awarded the whole of his costs.

Mr. Griffin clearly did exercise a high degree of influence over the course of events following the judge’s order, not simply by making certain amendments to the constitution later the same day in his capacity as chairman of the BNP, but by persuading the party to adopt version 12.2. He, must therefore take a measure of responsibility for the failure to raise the issue relating to the construction of the order at an early stage. In fact, as one can see from the correspondence passing between the Commission and the BNP during the summer of 2010, a confrontational position was adopted which did little to assist in resolving the dispute. Perhaps that was inevitable given the history of the matter, but it is a factor that is to be taken into account in deciding who should bear the costs of the proceedings.

In the end we have come to the conclusion that the Commission should pay Mr. Griffin’s costs of the committal proceedings. There is no answer to an application for the costs of the hearing itself and although we have considered whether it would be appropriate to deprive him of a proportion of his costs of the preparation, we do not think that the manner in which the proceedings were conducted was sufficiently blameworthy to justify an order of that kind. However, we think that the costs that the Commission is obliged to pay Mr. Griffin should be set off against the costs it is entitled to recover from him in relation to his application.

Finally, we have to consider the defendants’ application for their costs to be assessed on the indemnity basis and for a payment on account. In our view the application to commit, although ultimately unsuccessful, was not so unreasonable as to attract an order for indemnity costs. There was an issue that called for decision and although it can be said (as indeed it has been said) that committal proceedings should not have been brought in reliance on an order whose scope was open to argument, we do not think that the Commission’s conduct was such as to justify an order for indemnity costs.

Although Ms. Lumby and Mr. Darby were separately represented by junior counsel on the hearing of the application itself, Leading Counsel who appeared for Mr. Griffin, Mr. David Reade Q.C., also appeared for Mr. Darby and Mr. Ley, who appeared for Ms. Lumby, largely adopted Mr. Reade’s submissions. The defendants were all represented by the same firm of solicitors. In those circumstances, we are left in some doubt about the extent to which it was reasonable or necessary for Ms. Lumby or Mr. Darby to incur any significant liability for costs over and above that incurred by Mr. Griffin. That is a matter that will have to be considered on a detailed assessment, but it increases the difficulty of deciding what, if any, payment on account would be appropriate in each of their cases. In the case of Mr. Griffin, there is the difficulty that for the purposes of assessing the amount of any interim payment it would be necessary to take into account the order for set-off. In these circumstances we have concluded that it is not appropriate to make an order for an interim payment on account of costs. We have noted the Commission’s submission that since the solicitors acting for the defendants are a charity they are unable to charge for their services on a commercial basis. It does not affect any of our decisions and, if it is to be pursued, will have to be determined in the course of the detailed assessment.