FD25P00554 - [2025] EWHC 2878 (Fam)

Having considered the submissions of Mr Learmonth on behalf of the Trust and Mr Wolanski on behalf of TML, I am satisfied that TML should pay the costs of the Trust with respect to preparation for, and attendance at, this hearing, summarily assessed in the sum of £8,500 plus VAT. My reasons for so deciding are as follows.

The general rule on costs is that the unsuccessful party will pay the costs of the successful party. As I have noted, TML is a party to this application but not to the substantive proceedings that approved the financial remedy order for the purposes of FPR r. 28.3(5), which disapplies in financial remedy proceedings the usual rule that the unsuccessful party will be ordered to pay the costs of the successful party. Within this context, on the face of it TML is the “successful” party, in the sense that the court ordered the disclosure it applied for. However, I am satisfied that there are reasons in this case for departing, in part, from the general rule. The following matters justify such a departure in this case.

Whilst TML was successful in obtaining from the court the disclosure it sought, having by its N244 Application notice sought disclosure of orders made in proceedings involving Ms Rayner, that outcome could have been achieved without the need for the parties, including the Trust, to attend the hearing.

I acknowledge that, at the time it issued its application notice, TML did not have a case number and, therefore, was not aware of the fact that the Trust had been a party to the process that approved the financial remedy consent order agreed between Ms Rayner and Mr Rayner. Whilst it was clear from Ms Rayner’s public statement on 3 September 2025 that the trust existed and had been created within the context of those proceedings, I accept that this necessarily prevented TML from corresponding with the Trust prior to issuing its application in order to explore the potential for compromise. I further accept that the application by TML on 5 September 2025 was listed at short notice on 9 September 2025. I do not, however, accept that in these circumstances, there was no proper opportunity for TML to seek to compromise its application ahead of the hearing on 9 September 2025.

As I have noted, the directions order made by this court following TML’s application being issued, and provided to those representing TML by the Clerk of the Rules at 1555hrs on 5 September 2025, named Lucy Taylor of Rothley Law Limited as one of the parties to the substantive proceedings to be given notice of TML’s application. In such circumstances, it was open to TML at any point between the afternoon of Friday 5 September 2025 and the morning of Tuesday 9 September 2025 to engage with pre-hearing correspondence to ascertain the position of the Trust and the potential for agreement. Whilst the timescales were short the press are, generally, used to operating to short litigation deadlines.

It having been made aware of the application by TML, the Trust lodged a Skeleton Argument settled by Mr Learmonth which was served on TML on the afternoon of 8 September 2025. That Skeleton Argument confirmed in the following terms that the Trust did not object to TML being provided with copies of the orders it sought, subject to certain redactions. Whilst there was at the hearing further debate about the precise extent of the documentation resulting from the proceedings, the position of the Trust was expressed in relatively wide terms in Mr Learmonth’s Skeleton Argument:

“The Third Respondent has no objection in principle to certain information relating to the First and Second Respondents’ divorce and financial remedies proceedings being disclosed as the Applicant seeks. It is accepted that the question of whether the First Respondent, when Deputy Prime Minister, underpaid SDLT, wittingly or unwitting, is a matter of legitimate public interest, and indeed, the First and Second Respondents wanted to be able to disclose a certain amount of information, in order to give an accurate statement to the media about the First Respondent’s tax affairs (which, as can be seen from the statement at p.1 of the Applicant’s exhibit to the application, she has done).”

As became apparent during the hearing of TML’s application, TML were neutral as to the nature and extent of the redactions sought by the Trust, as outlined in the Skeleton Argument provided by Mr Learmonth on 8 September 2025.

In all the circumstances, I am satisfied that it was open to TML to seek to compromise its application from the afternoon of 5 September 2025, when they became aware of the fact that the Trust was a party to the process, and that it was clear from the afternoon of 8 September 2025 that the matter was capable of being dealt with by consent, as was the position, in effect, when the matter came before the court. There were three days, one of which was a business day, between the order requiring service of the application on the Trust and the hearing on 9 September 2025.

There is no indication in the documents before the court, whether by way of correspondence or otherwise, that TML took steps to compromise its application, either at the point it was served with the order of 5 September 2025 identifying the trustee or upon receipt of Mr Learmonth’s Skeleton Argument indicating that the Trust did not oppose disclosure, subject to redactions that TML itself ultimately did not oppose (there is also no evidence that TML had contacted Ms Rayner’s representatives and Mr Rayner). Had such sensible steps been taken, it is clear that a hearing of the matter, with the costs attendant thereon, could have been avoided where the same position adopted by the Trust was taken by Ms Rayner.

Again, whilst I accept that there was, at the hearing, further debate about the precise extent of the documentation resulting from the proceedings, and to that extent there were issues that were ventilated before the court, discussions prior to the hearing would readily have revealed the very limited scope of the disclosure to TML that was possible in this case and the extent of the agreement between the parties that resulted from that position. In these circumstances, I accept the submission of the Trust that the success achieved by TML was the disclosure of orders that the Trust and Ms Rayner were in any event prepared to disclose, subject only to redactions on which TML ultimately expressed itself to be neutral.

Within the foregoing context, I accept that the application made by TML concerned matters of obvious public interest, as was readily conceded by both the Trust and by Ms Rayner. However, as between TML and the Trust, there is a competing interest in this case. Namely, the interest in a vulnerable child and, in due course, adult awarded damages for clinical negligence to meet their needs now and in the future being able to preserve those funds and use them for their intended purpose without them being diminished by the costs of litigation not directly concerning the child.

Whether this is a public interest strictly so called is not a question on which I received submissions.  However, within the context of the court’s discretion as to costs, I am satisfied that the desirability of preserving damages held in the Trust to meet the needs of a vulnerable child and, in due course, adult for their intended purpose, rather than in meeting the costs of litigation not directly affecting the child should also weigh in the balance when determining whether to make a costs order in the circumstances I have described. In the particular circumstances of this case, this factor acts when determining costs to reduce the weight to be accorded to the public interest in the media being able to report on the events that gave rise to TML’s application. This conclusion is further reinforced in circumstances where the Trust is, as Mr Learmonth put it, an ‘innocent party’ to the application. The Trust was required to be served as a party to the proceedings and to engage in order to protect the interest of the child beneficiary of the Trust.