1. By civil bills dated 29 April 1999 the plaintiffs Thomas Ward, Ann Ward, Rosaline Ward and Margaret Ward, members of what is now officially called the Inish Traveller Community claimed damages for alleged wrongful discrimination and breach of duty under articles 21(1) and (2) of the Race Relations (Northern Ireland) Order 1997 (“the 1997 Order”) in and about the provision by the defendants to the plaintiffs of goods facilities and services at retail premises known as “Gino” in Portadown County Armagh. The plaintiffs also sought declaratory and injunctive relief.

2. Under article 3(1)(a) of the 1997 Order a person discriminates against another person in any circumstances relevant for the purposes of the Order if on racial grounds he treats the other less favourably than he treats or would treat other persons on racial grounds. Under article 5(2)(a) this includes the grounds of belonging to the Irish Traveller Community. Under article 21 it is unlawful for any person concerned with the provision for payment or otherwise of goods facilities or services to the public or a section of the public to discriminate against a person who seeks to obtain or use those goods facilities or services by refusing or deliberately omitting to provide him with any of them or by refusing or deliberately omitting to provide him with goods facilities or services of the same quality in the same manner and on the same terms as are normal in his case in relation to other members of the public.

3. Article 42 of the 1997 Order established the Commission for Racial Equality (“the Commission”). In broad terms the duties of the Commission are stated to be the elimination of discrimination, the promotion of equality of opportunity in good relations between persons of different racial groups and the keeping of the relevant legislation under review. The Order sets out the powers and duties of the Commission in greater detail. These include the provisions of article 64 which in paragraph 1 provides:-

4. Under article 64(2) assistance by the Commission may include the giving of advice, attempting to procure settlements, arranging for the giving of advice or assistance by a solicitor or counsel, arranging for representation by any person or any other form of assistance. Where the power to arrange for representation by any person including assistance as is usually given by a solicitor or counsel in the steps preliminary or incidental to any proceedings or in arriving at or giving effect to a compromise to avoid or bring to an end any proceedings exercised it is expressly provided that that does not affect the law or practice regulating the descriptions of persons who may appear in, conduct, defend and address the court in any proceedings.

5. Application was made by the plaintiffs to the Commission for support in the bringing of proceedings against the defendants in the County Court. The relevant committee of the Commission decided that assistance would be extended to lodging proceedings and representation in the County Court, the terms of assistance being those set out in the Commission’s letter of 21 April 1999. The conditions set out in the letter included the following material provisions:-

6. The plaintiffs each signed acknowledgements that they were prepared to accept the conditions on which the offers of assistance were made. They authorised the legal representatives appointed by the Commission in the case to disclose to the Commission any matters that might be necessary.

7. The firm of Fisher & Fisher was appointed to represent the plaintiffs in the proceedings.

8. Although the applicants were persons of limited means and thus would have been eligible for legal aid if the legal aid authorities considered that they had cases worth pursuing it appears that the legal aid authorities deemed legal aid inappropriate in a case which was supported by the Commission.

9. The County Court Judge dismissed the plaintiffs’ claims on the merits on 15 February 2000 with costs against the plaintiffs. Mr Harkin on behalf of the defendants stated to this court that the defendants were not aware of the funding arrangements between the plaintiffs and the Commission and did not apply to the County Court Judge for an order that the costs be paid by the Commission.

10. On the plaintiffs’ side it was considered appropriate to appeal the dismissal of the claims and by notices of appeal dated 6 March 2000 the solicitors lodged appeals to this court against the County Court decrees of dismissal.

11. It was common case between the parties that in a case falling within section 59 of the Judicature (Northern Ireland) Act 1978 the High Court has the power to order a non-party to pay all or some of the costs of the proceedings. Section 59(1) of the 1978 Act provides:-

12. It is to be noted that section 59 of the 1978 Act in terms only applies to proceedings in the High Court and the Court of Appeal and does not apply to proceedings in the County Court as such. Counsel submitted that there was no similar power vested in the County Court. However, article 34(1) of the County Courts (Northern Ireland) Order 1980 provides that a County Court in relation to any proceedings within its jurisdiction shall have the like powers of the High Court and powers to grant such relief, redress or remedy as ought to be granted or given in the like case in the High Court and in as full and ample a manner.

13. In addition article 54(2) of the 1997 Order provides that in claims under Part III of the 1997 Order (which includes article 21) all such remedies shall be obtainable in such proceedings as would be obtainable in the High Court.

14. It is thus clear that the County Court has jurisdiction in appropriate cases to make an order for costs against a third party such as the Commission.

15. In addition under article 64(e) of the County Courts (Northern Ireland) Order 1980 the High Court has power to make such order as to costs incurred in the appeal and in the proceedings in the County Court as the appellate court thinks fit.

16. Before appealing the plaintiffs and the solicitors were in communication with the Commission and requested authority to lodge notices of appeal. By letter of 29 February 2000 the Commission agreed that the plaintiffs should lodge an appeal but that any further action should await counsel’s opinion on the merits. In their letter they pointed out that:-

17. Notwithstanding this advice the solicitors failed to inform the defendants’ solicitors that the notices of appeal had been lodged as a protective measure, failed to ensure that the appeal procedure was taken no further pending counsel’s opinion and allowed the appeal to come on for hearing without informing either the defendants or the court of the fact that the plaintiffs were undecided whether to pursue the appeal. Counsel delayed furnishing an opinion on the merits of the claim. The appeal came on for hearing in the list on 9 June 2000 and was adjourned. On 16 June 2000 the Commission wrote to the plaintiff’s solicitors pointing out that the costs involved in the appeal were not assisted but pressed for counsel’s opinion before any further assistance was provided. Following receipt of counsel’s opinion the Commission decided not to extend assistance to the Wards to enable them to be represented at the appeal. The Commission asked the solicitors to withdraw the appeals. Notices of withdrawal of the appeals were sent to the court on 14 September 2000.

18. The appeals thus having been abandoned, the only issue of a determination at this stage relates to the question of costs. The defendants asked the court to exercise its powers to award costs against the Commission.

19. Mr Harkin on behalf of the defendants argued that the Commission should be ordered to pay the costs of the proceedings in the County Court and in this court. Relying on Murphy v Young & Co Brewery Plc [1997] 1 All ER 518 he argued that the Commission effectively controlled the litigation, had a clear interest in the conduct and outcome of it and appointed the solicitors to act for the plaintiffs. The proceedings would never have been brought had the Commission not decided to provide representation and assistance. Although as between the plaintiffs and the Commission it was understood that the Commission would not be liable for the defendants’ costs that agreement did not govern the question whether an order should be made against the Commission in favour of the defendants.

20. Mr O’Hara QC who appeared in this court (but not in the court below) and only appeared on the issue of costs on behalf of the plaintiffs and for the Commission argued that the plaintiffs were persons of no means and would have been entitled to legal aid had the legal aid authorities not taken the view that since they were assisted by the Commission it was inappropriate to grant them legal aid. The Commission did not apply a means test. In this case the Commission considered that the case raised important matters of principle which the Commission was entitled to consider should be pursued with its assistance. If legal aid had been granted effectively no recovery of costs from the plaintiffs would have been possible. He contended that it would frustrate the policy and purpose of the legislation to throw the defendants’ costs unto the Commission which has limited funds available to pursue its statutory function.

21. From the guidance provided by the Murphy decision and from the other authorities such as Symphony Group Plc v Hodgson [1993] 4 All ER 143, Singh v Observer Newspaper Limited [1989] 2 All ER 751 and Aiden Shipping Co Limited v Interbulk Limited [1986] AC 965 it is possible to distil a number of principles or guidelines. Thus:-

22. Phillips LJ pointed out that it must be remembered that the ultimate question is what is reasonable and just on the facts of the individual case and so the principles stated were guidelines only.

23. The question arises as to whether any of the provisions of the Convention throw light on the question when it is appropriate to order a third party to pay costs. Clearly if the court is considering making an order against a third party the third party must have an opportunity to be heard and to present arguments and evidence as to why such an order should not be made. This principle was recognised by the court in Murphy even before the incorporation of the convention into domestic law by the Human Rights Act 1998 (see Phillips LJ [1997] 1 All ER at 525 (c) to (f)). Article 6 thus adds nothing to the pre-existing domestic law in this context.

24. Mr O’Hara assisted the court by referring the court to the ECHR jurisprudence. He did not in reality seek to argue that there was anything in Convention law which called for a difference of approach on the part of the courts as stated in Murphy and the earlier cases therein referred to. Mr Harkin did not seek to rely on any Convention points.

25. The Convention jurisprudence on the question of costs is relatively undeveloped. What appears clear is that article 6(1) does not guarantee a successful litigant a right to costs. In Dublin Well Women Centre Limited v Ireland [1997] 23 EHRR 125 the Commission stated that:-

26. Thus while the Commission’s view in Grepne v UK [1966] DR 268 that “it is not an unreasonable requirement of civil litigation that the unsuccessful party may have to pay the adversary’s costs” in Dublin Well Woman Centre the Commission makes clear that it did not consider that the requirement of a fair trial necessitated the making of an order for costs against the unsuccessful party. It would follow a fortiori that the court is not bound to make an order for costs against a party providing funding to assist the unsuccessful party. The principle of equality of arms does not give rise to any such requirement. While Robins v UK [1998] 26 EHRR 527 makes clear that there must be fairness in the procedures to be followed in awarding or allocating costs it does not establish a substantive right to a costs order in any particular form.

27. In view of the approach adopted by Mr O’Hara and Mr Harkin in relation to the relevance of the Convention which appeared to concede that nothing in Convention law affects the question how the court should exercise its discretion I shall proceed upon that basis.

28. Looking at the circumstances prevailing in the present case the following factors appear to be material:-

29. I do take into account that the Commission’s decision to back the plaintiffs meant that the plaintiffs could pursue ultimately unsuccessful claims which necessitated the incurring by the defendants of not insignificant costs and expenses in the defence of the proceedings and there is thus an element of unfairness in a successful defendant obtaining an effectively valueless costs order against an unsuccessful plaintiff. It must be recognised that this is a feature of some litigation though it is something that in some measure can be guarded against by insurance. As it happens in this case it appears that the defendants’ insurance cover effectively covers the costs incurred.

30. There are two other matters which must be borne in mind. The defendants in this case did not ask the County Court Judge to make an order against the Commission at the conclusion of the cases. While this may have been due to lack of a full appreciation of the relationship between the Commission and the plaintiffs the defendants could easily have ascertained the true situation before the conclusion of the cases. It is undesirable for a party on appeal to ask the court to exercise a discretion which was available to the trial judge, particularly where as in the present case there has been no rehearing on the merits and no evidence called.

31. In Valentine on civil proceedings in the County Court at paragraph 19.49 it is stated that if an appeal is withdrawn:-

32. Since the withdrawal of the appeals leaves intact the decrees of the lower court, since the decrees ordered costs against the plaintiffs and since there was no cross appeal seeking a different costs order, on this ground also it would be inappropriate to order costs against the Commission.

33. Different considerations arise in respect of the costs of the appeal. The correspondence furnished to the court indicates that it was the Commission which instructed the plaintiffs’ solicitors to issue notices of appeal. It rather appears that the plaintiffs had little involvement in the decision to do so. By that stage there had been a full hearing on the merits and the only reason the Commission decided to lodge the notices of appeal at that stage was because the 21 day period for appeal was running out and the Commission was awaiting counsel’s opinion on the merits of an appeal. It is difficult to understand why counsel could not have timeously given an opinion before the expiry of the 21 days and it is even more difficult to understand why thereafter it took a further very protracted period for counsel’s opinion to be furnished.

34. Under the provisions of Order 33 rule 4 a successful defendant is required to forward the appropriate forms of decree to the office for signing and sealing. In the event of an appeal such form of decree shall be lodged within a reasonable time before the hearing of the appeal. I was informed by counsel that the costs of obtaining decrees dismissing the claims was £220. Launching appeals thus triggered immediate cost implications for the successful defendants. Furthermore once the appeals were launched, in the absence of a clear statement that nothing further should be done by the defendants pending a determination by the plaintiffs of whether they were genuinely going to pursue the appeals, the defendants were bound to incur costs in preparing for a defence of the appeals.

35. While the failure by the plaintiffs’ solicitors to take steps to minimise the costs of the appeal and the failure by counsel to properly advise on the merits of an appeal can be laid at the feet of the legal advisers rather than the Commission, in the circumstances I consider that it is right to make an order for the costs of the appeal against the Commission. The defendants were forced to incur wholly unnecessary further expenditure in defending ultimately abandoned appeals as a result of the actions of the Commission which may have a remedy against its legal advisers. The public policy arguments which militate against the making of a costs order against the Commission in respect of proceedings at first instance have considerably less force when the plaintiffs have had a hearing on the merits and have been unsuccessful. Furthermore the appeal turned out to be misconceived. The Commission should have appreciated the costs implications for the defendants if appeals, were launched and should have appreciated that the defendants would already have incurred significant and effectively irrecoverable costs. In the circumstances I consider that it would be appropriate to order the Commission to pay the costs of the appeals and I shall direct taxation of those costs.