Costs protection and ‘general public importance’
Costs capping in administrative law and family proceedings
‘Costs protection’ as a term, is barely (if at all) known as a subject to family courts judges 9save where they may have an Administrative Court ticket). For present purposes such protection, or ‘costs capping’ the issue can turn, in the rarified circumstances it applies, on whether a case is of ‘general public importance’ (GIP); and on the discretion of the discretion of the judge deciding the costs protection point.
It is GIP which I deal with here. I look at it in a personal example. To enhance the ‘watchdog’ role of press and, later, duly authorised lawyers (DAL, like me) were permitted into family courts where such proceedings were almost invariably held in ‘private’. The Family Procedure Rules Committee (FPRC) made a rule, Family Procedure Rules 2010 (FPR 2010) r 27.11, which permitted these ‘watchdogs’ to attend court, subject to restrictions deemed by existing substantive law including Administration of Justice Act 1960 (AJA 1960) s 12(1) and that any children involved in family cases should be anonymised.
A request for legal advice
I had been approached as a solicitor by a party to family proceedings, Cynthia Tooley (CT), the former wife of one Dr James Tooley (JT) formerly of Buckingham University (see https://dburrows.substack.com/p/judging-the-judges-or-through-a-glass-8ae and three earlier posts). The proceedings had been fiercely fought. There were no children of the family. Orders in the Family Court included non-molestation orders and reporting restrictions orders (what family lawyers euphemistically call ‘transparency’ orders: they actually mean the opposite). I was sent various documents by CT to enable me to advise. It turned out, because I live in France, that in the particular circumstances I cannot be insured to act for CT.
She had contacted me in early June. There was to be a hearing in Family Court in Milton Keynes before a circuit judge, His Honour Judge Peresko (HHJP) on 10 June 2026. The court agreed on 9 June that I could attend remotely. I suspect JT’s lawyers objected direct to the court; though to this date (over a month later) I do not formally know from the judge or lawyers for JT what form precisely their objection took. CT dare not tell me since I cannot have formal instructions from her as a client – I make no criticism of SRA in that – and given her being wrapped by the Family Court in formal reporting restrictions orders she dare not tell me what she knows.
The judge excluded me from his court. I have appealed to the Family Division in my own right – well, what I see as my right. I am seeking a costs protection order, that is to protect me – as far as possible – from an order for costs from other parties, which I estimate to be JT (and his lawyers) and some form of public body such as His Majesty’s Courts and Tribunal Service and (perhaps or) Family Procedure Rules Committee (FPRC). Had FPRC applied the common law on open justice none of this would have happened; but that is a long story for another day.
‘General public importance’
My application for costs protection is likely to turn on whether my appeal is regarded as of GPI. This was explained by Lord Justice Smith in R (Compton) v Wiltshire Primary Care Trust (Practice Note) [2008] EWCA Civ 749, [2009] 1 WLR 1436 (1 July 2008) where a representative of local people objected to planned hospital changes. Smith LJ explained GPI as.
Showing that the issues are of general public importance
[75] … There is no absolute standard by which to define what amounts to an issue of [GPI]. [Next] there are degrees to which the requirement may be satisfied; some issues may be of the first rank of [GPI] others of lesser rank although still of [GPI]. [And] making the judgment is an exercise in which two judges might legitimately reach a different view without either being wrong.
So, what makes my case special? Obviously my view is subjective. It was me who was excluded form court and it is on my appeal against that decision of a judge in Family Court in Milton Keynes that I seek costs protection. Headings for my GPI argument are:
(1) Human rights and a fair trial – This and (3) involve an understanding of basic European Convention 1950 rights to a fair trial. Judges like any public body must take that into account.
(2) Open justice – As far as possible courts should be open to all of us (lawyer, party to the case, press and general public alike). I shall explain in this post why I believe that to be of GPI.
(3) But what’s to be read by non-parties for a fair trial? – Any non-party – even a ‘watchdog’ – must have a fair hearing of their wanting to be in court against a party’s objection.
(4) Court’s duty of candour – The judge has a duty of candour towards any ‘watchdog; and this includes that the watchdog can have read most of what the judge has read.
(5) Legal privilege and absolute privacy – Judges must understand that where an individual consults a lawyer, their discussions must be open but must be unconditionally private (‘legal professional privilege’) including the court.
Given the facts of my appeal some may say to spill so much ink on discussion of the appeal, even to pursue the appeal at all, is disproportionate. Others might say that in modern times if a judge in Milton Keynes can kick a DAL (ie a watchdog, like me) out of his court over that DAL having no information as to the case against him or knowing what the judge has read to make his decision is the thin end of a hefty wedge.
I am of the ‘thin-end-of-a-wedge persuasion: well, I would be, wouldn’t I. This and a following post explain why I say this: as to (1) and (2) above here; and as to (3) to (5) in a second post.
European Convention 1950: towards a fair trial in open court
European Convention 1950 Art 6.1 is in two parts (as I read it). The first (numbering is mine) is:
(1) In the determination of his civil rights and obligations … everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly…
This is the bedrock of any court system based on the rule of law: (a) a ‘fair’ hearing; (b) a ‘public hearing (subject to exceptions in (2) below); (c) with public judgment; and (d) an impartial judge. In respect of my exclusion from HHJ Perusko’s (HHJP) court, the first three were absent. I am bound to have suspicions about HHJP’s impartiality; but only in his disposal and comments about me as a witness to unspecified committal proceedings against CT. Art 6.1 continues:
(2) …But the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice (my underlining and italics).
The underlined passage is, to a degree, picked up by the basis on which I was excluded by HHJP. FPR 2010 r 27.11(3) says that a person like me ‘shall not attend the proceedings’ in question where ‘(b) justice will … be impeded or prejudiced’.
The reference in the original to exclusion under Art 6.1 being ‘strictly necessary’ was left out by the draftsperson of r 27.11(3)(b); but, given the terms of Art 6.1 I doubt that this was permissible. To that limited extent r 27.11(3) may not be compatible with Art 6.1. Certainly HHJP did not make his findings on the grounds of ‘strict necessity’.
Court as a ‘public authority’
Human Rights Act 1998 s 6 under the heading ‘Acts of public authorities’ says:
(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.
(2) Subsection (1) does not apply to an act if— …
(b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.
(3) In this section ‘public authority’ includes—
(a) a court or tribunal….
I do not want to labour the point here. It will suffice to say here: judges too must comply with Convention rights, including assuring that anyone who comes into their court have, for present purposes, a fair and public hearing (subject to listed Art 6.1 exclusions). FPR 2010 r 27.10 denies this in direct and simple terms:
27.10 Hearings in private
(1) Proceedings to which these rules apply will be held in private, except –
(a) where these rules or any other enactment provide otherwise;
(b) subject to any enactment, where the court directs otherwise.
(2) For the purposes of these rules, a reference to proceedings held ‘in private’ means proceedings at which the general public have no right to be present.
I do not think the FPRC has power to make such a pervasive rule (ie if you look at what Parliament said FPRC was required to do: Courts Act 2003 ss 75 and 76); but that is a discussion for another day.
So ‘a fair and public hearing’? ‘Fair’ goes to the remaining three subjects above and will be reviewed in the next post. For now, what of ‘public’?
Open justice: a ‘public hearing’
In R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420, [2013] QB 618 (7 April 2012) Lord Justice Toulson said, in words enthusiastically repeated in various Supreme Court cases since:
[1] Open justice. The words express a principle at the heart of our system of justice and vital to the rule of law. The rule of law is a fine concept but fine words butter no parsnips. How is the rule of law itself to be policed? It is an age old question. Quis custodiet ipsos custodes - who will guard the guards themselves? In a democracy, where power depends on the consent of the people governed, the answer must lie in the transparency of the legal process. Open justice lets in the light and allows the public to scrutinise the workings of the law, for better or for worse. Jeremy Bentham said in a well-known passage quoted by Lord Shaw of Dunfermline in Scott v Scott [1913] AC 417, 477: ‘Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial.’
Indeed. HHJP openly professed to be an enthusiast for ‘transparency’; in other words, he was all for open justice. I say he failed in that; but that is what my appeal is largely all about. I will not repeat those arguments here. Citation of Art 6.1 with its exclusions – repeated in, for example, CPR 1998 r 39.2 (when civil proceedings may be help in private) – are all that is needed here for that argument.
But can a watch dog more than bark?
All I wish to say here, briefly, is that what Toulson LJ urges is only the start of the story, in my opinion. You can guard the guards; but more is needed. Suppose you find that the guards – for which now substitute ‘judges’ – are doing something which clearly seems wrong. I observe such wrongness, say, from my sitting in court or reading law reports. I believe a judge is wrong in law or in his or her legal reasoning.
Such was the case of Ms Lin where a bankruptcy judge got the law wrong, and it was not shortly afterwards picked up by a Family Division (ie High Court) judge. The judges (two bankruptcy judges and a High Court judge) all got the law wrong – in my opinion – and someone has suffered, as did Ms Lin; or so it seems to me, a ‘watchdog’ with a degree of experience in the subject.
What can a watchdog do? As the law now stands the ‘watchdog’ can do nothing. The watch-dog can bark; but bark into a vacuum. I believe there should be a mechanism, beyond (in my case) just writing about it. Someone in my position – a watchdog with knowledge and in the very small number of cases involved – should be able to set a review ball rolling. It should be possible, for excellent cause, for application to be made to the High Court for the error to be considered for correction.
David Burrows
17 July 2026