Wilkinson v Kitzinger & Her Majesty's Attorney General (Lord Chancellor intervening)  EWHC 835 (Fam)
The appellant was seeking a Protected Costs Order to enable an application to proceed for formal recognition in the UK of a marriage undertaken with her same sex partner in British Columbia in 2003. The application was refused.
The President's judgment sets out the circumstances in which Protected Costs Orders may be granted. He then reviews these guidelines in the light of this case considering whether there was any real prospect of success that the applicant's marriage would be recognised, as the Government had only recently moved to grant protection to same sex partnerships through the implementation of the Civil Partnership Act 2004.
Case No: FD005D04600
Neutral Citation Number:  EWHC 835 (Fam)
IN THE HIGH COURT OF JUSTICE
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 12th April 2006
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Susan Wilkinson Petitioner
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Celia Kitzinger 1st Respondent
Her Majesty's Attorney-General 2nd Respondent
The Lord Chancellor Intervener
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Ms Monaghan (instructed by Liberty) for the Petitioner
Ms Mountfield (instructed by Treasury Solicitors) for the The Attorney-General and the Intervener
Hearing date: 8 February 2006
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I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This judgment is being handed down in public on Wednesday 12 April 2006 It consists of 17 pages and has been signed and dated by the judge. The judge hereby gives leave for it to be reported.
Sir Mark Potter, P :
1. In these proceedings the petitioner Susan Wilkinson seeks a declaration as to her marital status under s.55 of the Family Law Act 1986 ("The 1986 Act"). At this stage she makes application for a protected costs order ("PCO") in respect of the costs of the Lord Chancellor as intervenor in the proceedings.
2. On 26 August 2003 the petitioner and first respondent, who were then and remain domiciled in England, went through a form of marriage, lawful and valid by the law of British Columbia which recognises as valid marriages between persons of the same sex.
3. By the prayer in her petition, the petitioner seeks a declaration that the marriage was a valid marriage at its inception and :
"If necessary in order to make such a declaration, the Petitioner also seeks a declaration of incompatibility under s.4 of the Human Rights Act 1998 in relation to s.11(c) of the Matrimonial Causes Act 1973." (MCA 1973)
4. S.11(c) the MCA 1973 provides that a marriage celebrated after 31 July 1971 shall be void on the ground that the parties are not respectively male and female.
5. Furthermore, since 2005 when the Civil Partnership Act 2004 ("2004 Act") came into force, the effect of ss212-218 of that Act is that the petitioner and first respondent are to be treated as having formed a civil partnership and not as being married. Nonetheless the Petitioner seeks a declaration that her Canadian marriage to the first Respondent is valid as a marriage in the United Kingdom.
The Grounds of the Petitioner's Claim.
6. There are formally two paths by which the Petitioner seeks such recognition of her marriage. Both in her petition, and in argument before me, it is contended that s.11(c) is susceptible of being "read out" from s.11 MCA 1973 under s.3 (1) of the Human Rights Act 1998. However, this submission was scarcely pursued before me, so clearly it is covered by the following observations of Lord Hope of Craighead in Bellinger v Bellinger (Lord Chancellor intervening)  UKHL 21,  2 AC 467 at 485 and following:
"64…. When Parliament used the words "male" and "female" in section 11 (c) of the 1973 Act, it must be taken to have used those words in the sense which they normally have when they are used to describe a person's sex, even though they are plainly capable of including men and women who happen to be infertile or past the age of child bearing…
67…. As I said in R v Lambert  2 AC 545, 585B-D, para 79, the obligation [under s.3 (1) of the Human Rights Act 1998] powerful though it is, is not to be performed without regard to its limitations. The obligation applies to the interpretation of legislation, which is the judges' function. It does not give them power to legislate: see also In re S (Minors) (Care Order: Implementation of Care Plan)  2 AC 29, 313B-D, paras 38-39, per Lord Nicholls of Birkenhead…
69…. It is quite impossible to hold that section 11(c) of the 1973 treats the sex of the party to a marriage ceremony as irrelevant, as it makes express provision to the contrary. In any event, problems of great complexity would be involved if recognition were to be given to same sex marriages. They must be left to Parliament. I do not think that your Lordships can solve the problem judicially by means of the interpretative obligation in section 3 (1) of the 1998 Act."
7. Since that decision, of course, Parliament has in the course of the passage of the 2004 Act, re-examined the complex problems involved if recognition were to be given to same sex marriages. The solution which Parliament has reached in the form of the 2004 Act is formal recognition of a status and relationship closely modelled upon that of marriage and making available to civil partners essentially every material right and responsibility presently arising from marriage with the exception of the form of ceremony and the actual status of marriage.
8. It is nonetheless the case for the petitioner that, if the terms of s.11 (c) are indeed to be read and treated literally, then, taken alone or in combination with the effect of s.212-218 of the Civil Partnership Act 2004, English statutory law is incompatible with the rights of the petitioner and the first respondent under the European Convention on Human Rights ("the Convention") and that, the inability or failure to recognise their Canadian marriage as a lawful marriage for the purposes of English law constitutes a breach of Article 8, Article 12 and Article 14 of the Convention. She thus seeks a declaration of incompatibility.
9. In brief summary, the case for the petitioner as advanced in her petition and in argument before me by Ms Monaghan on her behalf, is as follows.
10. Article 8 of the ECHR provides that:
"(1) Everyone has the right to respect for his private and family life, his home, and his correspondence.
(2) There shall be no interference by a public body with the exercise of this right except as such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the rights and freedoms of others."
11. In respect of Article 8 it has been stated that, since the very essence of the Convention is respect for human dignity and human freedom the Article encompasses the right to personal development and physical and moral security in the full sense enjoyed by others: see Goodwin v UK (2002) 35 EHRR 18, para 90. It is submitted that non-recognition of the marriage between the petitioner and the first respondent conflicts with a key aspect of their personal identity and thus constitutes a serious interference with their private life: see ibid para 77.
12. It is further submitted that none of the exceptions in Article 8(2) is available to be relied on by way of justification for such interference and that no legitimate aim can be identified for the distinction made in law as between married (male and female) couples and same sex couples who are denied the status of marriage, albeit enjoying virtually all the rights and responsibilities flowing therefrom. It is submitted that the only discernible reasons for refusal to recognise same-sex marriage are pre-disposed bias and negative attitudes towards homosexuals, which cannot constitute a legitimate aim: see Smith and Grady v United Kingdom (2000) 29 EHRR 493, para 97; SL v Austria (2003) 37 EHRR 39, paras 37 & 44. There is thus a violation of the Article 8 rights of the Petitioner and the first Respondent.
13. Article 12 of the ECHR provides that:
"Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right."
14. The Petitioner contends that the reference in Article 12 to "men and women" having the right to marry is not limited to marriage as between men and women, but should be read as conferring and/or guaranteeing the right of men and women to marry someone of the same sex and thus of the right of the petitioner and the first respondent to marry each other. It is acknowledged that such a reading would be a novel one in European jurisprudence but, in this respect, reliance is placed on the observation of the European Court of Human Rights in Goodwin v UK at para 100 to the effect that past assumptions as to "men and women" in Article 12 should be cast aside in the light of major social changes in the institution of marriage.
15. Article 14 of the ECHR provides that:
"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any grounds such as sex…birth or other status."
16. On the basis that the claim of the petitioner falls within the ambit of Articles 8 and 12, it is asserted that there is a violation of the rights of the petitioner and first respondent in that the difference in their treatment by according them the status of civil partners only, as opposed to that of a married couple is on the grounds of their sexual orientation, which is one of the proscribed grounds under Article 14: see Salgueiro Da Silva Mouta v Portugal (2001) 31 EHRR 47.
17. It is submitted that the petitioner and the first respondent are in a situation similar in all respects to a different-sex couple lawfully married in Canada whilst domiciled in the United Kingdom. They have chosen formally to register the marriage as their union to the exclusion of all others and there is no objective justification for the difference in treatment between same-sex and opposite-sex couples. Thus the failure to recognise the marriage of the petitioner and first respondent as a lawful marriage in the United Kingdom is in violation of their rights under Article 14 (taken together with Article 12).
The position of the parties to the proceedings:
18. The claim of the petitioner is brought pursuant to s.55 of the 1986 Act as subsequently amended. That section provides:
"(1) Subject to the following provisions of this section, any person may apply to the High Court or a County Court for one or more of the following declarations in relation to a marriage specified in the application, that is to say –
(a) a declaration that the marriage was at its inception a valid marriage;
(b) a declaration that the marriage subsisted on a date specified in the application; …."
S.55 (1) sets out the qualifications necessary for a party to bring such an application, including those of domicile and habitual residence, which are satisfied by the parties in this case.
19. The petitioner has brought her proceedings against the first respondent who, as her civil partner, supports her position and has no interest in opposing the proceedings or advancing any argument contrary to those of the petitioner. The first respondent has not been represented upon this application.
20. S.59 of the 1986 Act provides:
"(1) On an application (to a court) for a declaration under this Part the court may at any stage of the proceedings, of its own motion or on the application of any party to the proceedings, direct that all necessary papers on the matter be sent to the Attorney-General.
(2) The Attorney-General, whether or not he is sent papers in relation to an application… for a declaration under this Part may –
(a) intervene in the proceedings on that application in such manner as he thinks necessary or expedient, and
(b) argue before the court any question in relation to the application which the court considers it necessary to have fully argued.
(3) Where any costs are incurred by the Attorney-General in connection with any application to a court for a declaration after this Part, the court may make such order that it considers just as to the payment of those costs by parties to the proceedings."
21. The Attorney-General was served with notice of these proceedings in accordance with r.3.16 (4) of the Family Proceedings Rules 1991 (FPR). He elected not to take an active part in the proceedings, preferring the Lord Chancellor as a Minister of the Crown to present arguments on the Crown's behalf pursuant to the rights of intervention next referred to. The Attorney-General has indicated that his costs in connection with the proceedings will be trivial and will not be claimed in any event. He will adopt the position of the Lord Chancellor.
22. Since the petitioner by these proceedings seeks a declaration that s.11(c) of the MCA 1973 is contrary to Article 12 of the Convention, the Crown is entitled to intervene in the proceedings pursuant to s.5 of the Human Rights Act 1998 ("HRA") which provides:
"(1) Where a court is considering whether to make a declaration of incompatibility, the Crown is entitled to notice in accordance with rules of court.
(2) In any case to which subsection (1) applies –
(a) a Minster of the Crown (or a person nominated by him)…
Is entitled, on giving notice in accordance with of court, to be joined as a party to the proceedings."
Pursuant to Rule 10.26 (5) of the FPR, where notice of the proceedings have been given to the Crown,
"A Minister, or other person permitted by the Human Rights Act 1998, shall be joined as a party on giving notice to the court."
Pursuant to these provisions the Lord Chancellor has intervened as the Minister to make representations in this case on behalf of the Crown, being the Minister in charge of the department with responsibility for the relevant legislation and for family issues generally (c.f. Bellinger v Bellinger)
23. There is no statutory provision governing the Lord Chancellor's costs comparable to that made in respect of the Attorney-General's costs under s.59 (3) of the 1986 Act. However, the Lord Chancellor has made his position clear in correspondence prior to the hearing of this application, namely that he considers these proceedings to be misconceived as a matter of law and that, should he be successful in resisting the proceedings, he will seek an order for costs against the Petitioner.
The Instant Application
24. In the face of that position, the Petitioner seeks at this stage a Protective Costs Order (PCO) that each party should bear its own costs and that there should be no further order as to costs.
The Relevant Costs Rules
25. Section 51 of the Supreme Court Act 1981 provides that, subject to any rules of court, the costs of and incidental to all proceedings in the High Court shall be in the discretion of the court. Subsection (3) provides that the court shall have full power to determine by whom and to what extent the costs are to be paid. As already indicated, in relation to proceedings of this kind, the court has no specific power to order costs in favour of the Lord Chancellor cf s.59 (3) in relation to the costs of the Attorney-General. However, in the light of the provisions of s.51 of the Supreme Court Act 1981, subject to any restrictions provided for under the rules of court to which I refer below, the court's general discretion is not fettered in any way in relation to the costs of the Lord Chancellor, should he be successful in resisting these proceedings.
26. Rule 44 of the Civil Procedure Rules (CPR) contains the general rules as to costs in civil cases. CPR 44.3(1) gives the court discretion as to whether costs are payable by one party to another, the amount of such costs and when they are to be paid. CPR 44.3(2) sets out the long-standing general rule that costs follow the event i.e. that the unsuccessful party will be ordered to pay the costs of the successful party although the court may make a different order.
27. However, family proceedings, under s.55 of the Family Law Act 1986 are not governed by the CPR but by the FPR. FPR 10.27 applies CPR 44 to costs in family proceedings. However, by virtue of FPR 10.27 (1) (b), CPR 44.3(2) does not apply. Accordingly, there is no presumption that costs follow the event and the court's discretion as to costs in this context is at large under s.51 of the Supreme Court Act 1981, CPR 44.3(1), and under CPR 3.2, which gives the court power to make any order for the purpose of managing the case and furthering the overriding objective.
Protective Costs Orders
28. The breadth of the court's discretion includes power to make a PCO. In determining whether to make any costs order, including a PCO, the court must have regard to the general principles underpinning the CPR as provided for in CPR 1(the overriding objective) which requires, that any power given by the rules is to be exercised justly, and includes the requirement to have regard to the relevant positions of the parties. That said, the considerations to be taken into account when deciding whether or not to make a PCO have recently been the subject of comprehensive review and consideration in R(On the Application of Corner House Research) v Secretary of State for Trade and Industry  EWCA Civ 192  1WLR 2600 ("The Corner House case"). In that case the Court of Appeal reconsidered the guidelines earlier laid down by Dyson J in R v Lord Chancellor, Ex p Child Poverty Action Group  1WLR 347, 353 and set out the principles governing the making of PCOs in public law cases raising issues of general public importance, in order to allow claimants of limited means access to the courts without the fear of substantial orders for costs being made against them.
29. It is of course the position that I am concerned with private law proceedings. In that respect, the judgment of the Court of Appeal, delivered by Lord Philips of Worth Matravers MR made clear at para 28 that it was
"concerned not with the incidence of costs in private law civil or family litigation …, but with the incidence of costs in a judicial review application at first instance. Over the last twenty years there has been a growing feeling in some quarters both in this country and in common law countries abroad which have adopted the "costs follow the event" regime, that access to justice is sometimes unjustly impeded if there is slavish adherence to the normal private law costs regime prescribed by Buckley LJ in Wallersteiner v Moir (No2)  QB 373 and by Hoffman LJ in McDonald v Horne  ICR 685."
30. Nonetheless, the parties before me are agreed that the nature of the instant proceedings is essentially "quasi-public", in the sense that they go to matters of status, they are essentially directed to the elucidation of public law and they involve proceedings which might appropriately be brought in the Administrative Court but for the statutory provision contained in s.55 of the 1986 Act; the parties have therefore been in broad agreement that I should approach the application before me on the basis of the principles set out in the Corner House case. It seems to me that, if anything, such an agreement is to the advantage of the petitioner in that the history of the development of the approach of the court to costs in public law cases
"demonstrates fully how the role of a public authority in public law proceedings and the way in which the court exercises its discretion as to costs in cases containing a genuine public interest element presents significant differences from the usual practice in private law litigation"(para 37)
"demonstrate[s] … a trend towards protecting litigants, who reasonably bring public law proceedings in the public interest, from the liability to costs that falls, as a general rule, on an unsuccessful party. The making of a PCO was a substantial further step in the same direction". (para )
31. After a lengthy review and citation of authorities showing recent developments in Ireland, Canada and Australia, the court stated in the Corner House case.
"69. We are satisfied that there are features of public law litigation which distinguish it from private law, civil and family litigation. The House of Lords identified one important difference in R v Secretary of State of the Home Department, Ex p Salem  1 AC 450, 456-457, when Lord Slynn of Hadley acknowledged that the House possessed discretion to hear an appeal concerned with an issue involving a public authority as to a question of public law even when the parties to the appeal had ended the "lis" between them. He said there must be a good reason in the public interest for doing so, and cited as an example, at p.457B a case when a discrete point of statutory construction arises which does not involve detailed consideration of facts and where a large number of similar cases exists or are anticipated so that the issue will most likely need to be resolved in the near future.
70. The important difference here is that there is a public interest in the elucidation of public law by a higher court in addition to the interests of the individual parties. One should not therefore necessarily expect identical principles to govern the incidence of costs in public law cases, much less the "arterial hardening" of guidance into rule which the majority of the High Court of Australia eschewed in the Oshlack Case 193 CLR 72."
32. In the Corner House case, the Court of Appeal held as follows:
"72. Dyson J emphasised that the guidelines related to public interest challenges which he defined at  1 WLR 347, 353. We believe that this definition can usefully be incorporated into the guidelines themselves. Dyson J said that the jurisdiction to make a PCO should be exercised only in the most exceptional circumstances. We agree with this statement, but on itself it does not assist in identifying those circumstances.
73. We endorse the first, the third, and the fourth of the Child Poverty Action Group guidelines. We consider, however, that the second guideline needs to be recast. It commonly happens when a court has to take an important decision at an early stage of proceedings that it must do no more than conclude that the applicant's case has a real (as opposed to a fanciful) prospect of success, or that its case is "properly arguable". To place the threshold any higher is to invite heavy and time-consuming ancillary litigation of the type that disfigured the conduct of civil litigation twenty-five years ago. We realise that in CPR Pt 54 the rule-maker prescribed no explicit criteria for the grant of permission to apply for judicial review, but we consider that no PCO should be granted unless the judge considers that the application for judicial review has a real prospect of success and that it is in the public interest to make the order.
74. We would therefore restate the governing principles in these terms.
(1) a Protective Costs Order may be made at any stage of the proceedings, on such conditions as the court thinks fit, provided that the court is satisfied that: (i) the issues raised are of general public importance; (ii) the public interest requires that those issues should be resolved; (iii) the applicant has no private interest in the outcome of the case; (iv) having regard to the financial resources of the applicants and the respondent(s) and to the amount of costs that are likely to be involved, it is fair and just to make the order; and (v) if the order is not made the applicant would probably discontinue with the proceedings and would be acting reasonably in so doing.
(2) If those acting for the applicant are doing so pro bono this will be likely to enhance the merits of the application for a PCO.
(3) It is for the court, in its discretion, to decide whether it is fair and just to make the order in the light of considerations set out above."
The petitioner's grounds of application
33. In relation to the guidelines set out in the Corner House case, the petitioner submits that her case as pleaded has a real prospect of success and that it is in the public interest to make a declaration of incompatibility. As to the numbered criteria or "governing principles" set out in para 74 of the judgment, she submits as follows.
34. (1)(i) The issue of non-recognition of same sex marriage is of significant and general public importance.
35. (1)(ii) The public interest requires that the issue be resolved. In this respect she places reliance upon the case law in other jurisdictions, notably in South Africa (Ministry of Home Affairs & Others v Fourie & Others (2005) South African Constitutional Court, CCT 60/04); Canada (In the Matter of S.5 of the Supreme Court Act 3 SCR 698) and Massachusetts (Opinions of the Justices to the Senate, Supreme Judicial Court of Massachusetts, 80T N.E.2d 565). She argues that the decisions of these courts, together with legislation in Netherlands, Denmark and Spain redefining marriage simply as a union between two persons, give rise to a pressing public need for the courts effectively to review the Ministerial statement pursuant to s.19 (1) of the Human Rights Act 1998 that the provisions of the Act are compatible with Convention Rights and to make a declaration of incompatibility.
36. (1)(iii) The petitioner has no private interest in the case of a kind which would set her or the first respondent apart from any applicant with locus standi in public law proceedings, in that they seek only declaratory relief. Thus, while she has a private interest to the extent of the value accorded to the dignity of the petitioner and first respondent in the event their petition is successful, there is no pecuniary advantage to be obtained from the proceedings. Whatever the precise meaning or nature of the term "private interest" referred to in the Corner House case, it is not sufficient to justify a refusal to make a PCO.
37. (1)(iv)& (v) So far as the financial resources of the petitioner and respondent are concerned, the Treasury Solicitor has indicated that the Lord Chancellor estimates his total costs if the matter proceeds to a hearing as amounting to £32,500 plus VAT i.e. £37,500. In relation to this sum the petitioner, who acknowledges the common interest of herself and the first respondent in the proceedings and their joint position as a couple living together in a jointly owned house and pooling their resources, has set out in detail their joint assets by way of capital and income available in respect of any liability for costs, it being the position that they do not claim costs against each other and are being supported in their action on a pro bono basis. I do not propose to set out their means in detail. Suffice it to say that they are both professors with two homes and two incomes. Considered jointly they have combined salaries of £105,630 per annum (plus small additional incomes of approximately £600 per annum between them; they have an equity of more than £240,000 in their two homes; a sum in excess of £21,000 in ISAs and the benefit of their respective final salary pension schemes. Their joint income after tax would appear to be some £68,950 and their personal joint outgoings £54,000. According to the tax treatment of certain business expenses their surplus income after taking account of the detailed figures is £4,000 on the basis of the petitioner's presentation and £9,500 upon the intervener's calculation, which I am inclined to think is likely to be correct.
38. At the end of her statement, the petitioner puts it in this way:
"… we have modest savings given our age and, apart from our homes and few assets, which assets which we need for our work as academics, we do not have additional resources at our disposal. We simply do not have the resources to meet that kind of liability and, if a PCO is not granted, we would have to seriously consider whether or not we would continue with the case."
The Intervener's submission
39. As to the preliminary guideline, it is the submission of Ms Mountfield for the Lord Chancellor that no real prospect of success is demonstrable. In relation to the petitioner's arguments in respect of the Convention, Ms Mountfield submits as follows.
40. First, so far as the present state of the common law and of UK statute law is concerned, the position is plain and, despite arguments to the contrary referred to in the petitioner's claim, the real question at issue is whether or not the clear provisions of s.11(c) of MCA 1973 and ss.212-218 of the Civil Partnership Act 2004 are incompatible with the Convention. With that I agree. As stated by Lord Nichols of Birkenhead in Bellinger v Bellinger at para 46:
"Marriage is an institution or relationship deeply embedded in the religious and social culture of this country… as a relationship between two persons of the opposite sex."
That being so, and in the light of the clear statutory terms of s.11(c) and ss. 212-218, any argument that there is room to "read out" or "read down" those provisions pursuant to s.3(1) of the Human Rights Act 1998 has no real prospect of success in my view.
41. As to the question of incompatibility, Ms Mountfield submits that the petitioner equally enjoys no real prospect of success.
42. So far as Article 8 of the Convention is concerned, Ms Mountfield submits that Article 8 is simply not engaged on the facts of the case in that, by legislating as it has, Parliament has in no way failed to show respect for the public and/ or family life of same-sex partners such as the petitioner and first respondent. Legislation directed to conferring on them the benefit of rights and responsibilities not previously enjoyed, involves an enhancement of respect for their private and/or family life and not a derogation from it. Respect for the privacy or family life of same-sex partners does not impose upon the state a positive obligation to introduce measures which would "improve" their status to the extent of permitting them to marry: c.f. Johnston v Ireland  9EHRR 203 paras 65-68. In so far as such enhancement may fall short of full recognition of the status of marriage, there is no breach of Article 8 involved even in the extended sense identified in Goodwin v UK.
43. So far as Article 12 is concerned, Ms Mountfield submits that it does not apply to recognition of same-sex relationships at all, but to the right of a man and a woman to marry, as recognised in the domestic laws of the respective member states of the Council of Europe. She observes that there is no decision of the ECtHR or any Convention jurisprudence which suggests the contrary and she refers to the recent decision of the ECtHR in B and L v United Kingdom (APP.36536/02, 5 October 2005) at paragraph 34 in which, albeit in the context of a complaint concerning a marriage between persons of opposite sex, it was stated:
"Article 12 secures the fundamental right of a man and woman to marry and found a family. The exercise of the right to marry gives rise to social personal and legal consequences. It is subject to the national laws as a Contracting States that the limitations thereby introduced must not restrict or reduce the right in such a way or to such an extent that the very essence of the right is impaired (see Reece v The United Kingdom… judgment of 17 October 1986, Series A no 106, para 50; F v Switzerland, judgment of 18 December 1987, Series A no 128, para 32)."
44. Accordingly, Ms Mountfield submits that the extent to which, and the means by which, domestic law affords protection to same-sex relationships do not fall within the ambit of Article 12. Nor can the "living instrument" doctrine be used to bring within the scope of the Convention issues which are simply outside its scope, see Johnston v Ireland at paragraph 53
"It is true that the Convention and its Protocols must be interpreted in the light of present-day conditions. However, the court cannot, by means of an evaluative interpretation, derive from these instruments a right that was not included therein at the outset."
45. Thus, submits Ms Mountfield, because the matter falls outside the scope of Article 8 and Article 12, Article 14 of the Convention does not come into play. As stated in Fretté v France  2 FLR 9 at paragraph 27, Article 14
"… complements the other substantive provisions of the Convention and its Protocols. It has no independent existence since it has effect solely in relation to 'the enjoyment of the rights and freedoms' safeguarded by those provisions."
46. Finally, Ms Mountfield submits that the ECtHR is very slow to trespass in areas of social, political and religious controversy, where a wide variety of national and cultural traditions are in play and different political and legal choices have been made by various member states of the Community. In such cases, there is a wide margin of appreciation. The concept of marriage as a relationship between two people of the opposite sex is not only deeply embedded in the common law of United Kingdom; the laws of all the member states share this approach save for three, namely Denmark, the Netherlands and Spain, which have recognised marriage between same-sex partners. The Civil Partnership Act has afforded to same-sex couples essentially all the practical property and legal benefits of marriage, stopping short of its formal status only in deference to religious and deep-seated beliefs on the part of large numbers of the population, areas in which European jurisprudence most readily recognises and permits to member states a margin of appreciation. Thus, submits Ms Mountfield, the petitioner is bound to fail in these proceedings and, for the purposes of this application, she falls outside the preliminary guideline.
47. Ms Mountfield repeats these arguments in relation to guidelines 1(i) and (ii) set out in the Corner House case. She submits that there is no point of general public importance which requires to be resolved in the public interest in the sense dealt with in the Corner House case, or in other reported cases in which a PCO has been sought. She submits that what is at issue in this case is essentially not a point of general legal importance in the sense of "a discrete point of statutory construction" necessary to be resolved in the near future as affecting a large number of similar cases, or of a case requiring "elucidation of the public law" by the higher courts in the public interest as well as in the interest of the individual parties (see paras. 69-70). Ms Mountfield asserts that the law is clear. The thrust and purpose of the arguments advanced by the petitioner are simply for change in a law recently passed, as part of a campaign to further the political and social interests of a restricted number of people who take the view that, in reaching its decision on the scope and extent of the Civil Partnership Act, Parliament did not go far enough. That, submits Ms Mountfield, does not of itself render the question to be decided a matter of general public interest in the sense hitherto contemplated in the authorities, let alone one which needs to be speedily resolved. Nor is it a case, where the action is brought as a mechanism for vindicating the rights and interests of an individual under existing law, for exposing error or maladministration in some aspect of Government, or as a mechanism for the scrutiny or accountability of public administration.
48. So far as guideline 1(iii) is concerned, Ms Mountfield submits that the essence of the case is essentially pursuit of the petitioner's private interest, not in a financial sense, but in the sense that the case is pursued for her personal benefit and satisfaction. She seeks a change in the law on her own behalf, albeit she also regards herself as the standard bearer for other same-sex couples who wish to enjoy the full ceremony and status of marriage rather than that of civil partnership.
49. As to guidelines 1(iv) and (v), Ms Mountfield submits that it is plain from her statement of means that the petitioner has or by loan could have access to, sufficient means to bring the action and pay the Lord Chancellor's costs if she loses and that neither her statement of means nor her careful choice of words directed to the issue (see para 38 above) make clear that she would probably discontinue the proceedings if the PCO which she seeks is not made.
50. So far as the preliminary criterion is concerned, I can say at once that, while it is plain that considerable difficulties lie in the petitioner's path, I do not accede to the submission that her case is misconceived in the sense that it is not arguable. I consider that there is sufficient material available for an argument based on principle and Commonwealth and U.S jurisprudence that the requirement of the Civil Partnership Act that a marriage between same-sex partners abroad must, on registration, be treated as a civil partnership and not a marriage, is on the face of it discriminatory on the grounds of sexual orientation in that, despite the equivalence of the material rights and responsibilities granted by the Act to the rights and the responsibilities of those enjoyed by married couples, the validity and dignity of the ceremony and title of marriage itself is denied to them. The hurdle to be overcome, however, is the requirement to tie such discrimination to Article 8 and/or Article 12 rights as interpreted to date. In this respect, so far as Article 8 is concerned the decision of the House of Lords in Secretary of State for Work and Pensions v M  UKHL11, published after counsel had completed their submissions in this application, increases the height of that hurdle. In that case, their Lordships emphasised the necessity to tie Article 14 to the 'ambit' of another Convention right, that the ECtHR does not at present recognise that the Article 8 guarantee of respect for family life is applicable to the relationship of same-sex couples and that contracting states still enjoy a wide margin of appreciation in that respect.
51. On the preliminary canter which this application has afforded, I can see few grounds for optimism on the part of the petitioner, at least so far as a decision at first instance is concerned. However, I do not consider the matter is unarguable in the light of the trend of modern developments within and outside Europe as listed by Lord Mance at paragraph 152 of his speech in M and, were these proceedings for judicial review, I would regard the matter as hovering on the threshold of the preliminary criterion laid down.
52. Proceeding to the numbered criteria set out in paragraph 74 of the Corner House case, I propose to take (1) (i) and (ii) together. The issues raised are of considerable interest and of importance to an indeterminate number of same-sex partners who are, like the petitioner, not content with the grant of substantial equivalence to marriage so far as the general rights and responsibilities attaching to that status are concerned but who, in the words of the petitioner, "are forced to have our lawful marriage reduced to the status of a civil partnership" and who consider that the offering of "a lesser status of registering a civil partnership to lesbian and gay couples, while reserving marriage for heterosexual couples, is deeply discriminatory".
53. Whilst I readily understand that view, it seems to be questionable whether it is one of general public importance or one which the public interest requires should be resolved, at least in the sense in which those considerations have previously led to the grant of a PCO. This is indeed a case where the law is clear, that is to say where the distinction between marriage and civil partnership is clearly laid down and readily applicable without doubt or difficulty. No process of clarification is necessary. There is no question as to whether the law is being fairly or evenly applied; nor is any novel or allegedly unfair action on the part of the executive under challenge; nor is the action brought to uphold or further some matter of broad environmental or social benefit to the community. In short, the action is being brought, not to uphold the law, as recently laid down by Parliament, but to secure its change. Put in that way, it is difficult to see that the public interest requires change so soon after the passage of the relevant legislation and the general welcome it has received.
54. As to (1) (iii), I find the requirement that the applicant should have "no private interest in the outcome" a somewhat elusive concept to apply in any case in which the applicant, either in private or public law proceedings is pursuing a personal remedy, albeit his or her purpose is essentially representative of a number of persons with a similar interest. In such a case, it is difficult to see why, if a PCO is otherwise appropriate, the existence of the applicant's private or personal interest should disqualify him or her from the benefit of such an order. I consider that, the nature and extent of the "private interest" and its weight or importance in the overall context should be treated as a flexible element in the court's consideration of the question whether it is fair and just to make the order. Were I to be persuaded that the remaining criteria are satisfied, I would not regard requirement 1(iii) as fatal to this application.
55. However, taking the remaining criteria into account, I do not consider that this is a case where it is appropriate to make the PCO sought, although, for reasons I shall state later, I do consider it appropriate to impose a limit upon the amount the Lord Chancellor's costs.
56. As I have already indicated, it seems to me, at this preliminary stage at least, that the applicant's prospects of success are substantially in doubt and depend upon establishing propositions which extend well beyond the present bounds of English and European jurisprudence. While the issues are of public interest and importance in the sense that any question of alleged discrimination deserves public concern and the court's attention, the issue raised in this case relates to a measure carefully and recently considered and passed by Parliament with a view to producing equivalence, in a context in which the ECtHR clearly recognises the margin of appreciation and permits it to operate. Further, there is scant evidence before me that a substantial number of same-sex couples are in the same position as the petitioner and first respondent, or consider that the status, rights, and responsibilities accorded to them under the Civil Partnership Act disadvantage or demean them in any way in comparison to married couples. In the circumstances, I am not persuaded that the issues raised require resolution as a matter of general public importance.
57. Nor do I find that criteria 1(iv) and (v) are satisfied. This is a case where those acting for the applicant are doing so pro bono. Pursuant to criterion (2), that consideration has the potential to enhance the merits of the application for a PCO but it is not alone sufficient. It is plain, and must have been plain to the petitioner and first respondent from the outset that, challenging as they do the basis of the traditional and fundamental definition of marriage, and the Government's recent decision to preserve that status and institution as distinct from civil partnership, there was bound to be intervention by the Government in resistance to the petitioner's claim, with the potential liability for costs which such intervention would carry. Despite that, the petitioner took a measured decision to proceed with the support of Liberty and pro bono representation. In this situation, as a matter of fairness and justice between the parties, it does not seem to me unreasonable, unfair or unjust, in the absence of evidence of real hardship, that the petitioner should be at risk of at least a contribution to the costs of an intervenor who has a proper interest in opposing the claim. So far as criterion 1(v) is concerned, having recited and considered the financial resources of the petitioner and first respondent, it does not seem to me that, whether from their savings or by way of a loan, they would be unable to meet an order for costs if an award of costs were considered appropriate at the end of the litigation. They are at no risk of liability in respect of the petitioner's own costs and, as the statement of the petitioner makes clear, theirs was a measured decision to proceed as a matter of principle.
58. Against that background, I find the wording of the petitioner's statement on the question of her costs illuminating. She does not say that if the order is not made she will "probably discontinue the proceedings", but, in a carefully worded statement says simply that: "if a PCO is not granted, we would have to seriously consider whether or not we would continue with the case." In the light of that careful phrasing, and bearing in mind the resolve of the petitioner and the assistance available to her, I do not think that it is probable that she will discontinue if she is refused the PCO which she seeks, at least provided the costs which she faces are quantified on a reasonable basis. In that respect, having investigated the matter with Ms Mountfield in the course of argument, it appears that the Crown's estimate of the costs of the proceedings (including this application) was reached on the basis that the trial of the action would take four days. In my view, two days should be sufficient and, in those circumstances, I propose to impose a cap of £25,000 upon any sum which may ultimately be awarded to the Lord Chancellor on account of costs.
59. Having so indicated, I wish to make clear that nothing I have said upon this application, which has necessarily involved a preliminary and cursory look at the issues involved, should inhibit the discretion of the judge at trial to make or refuse an award of costs against the Lord Chancellor save that, if such award is made, it should not exceed the sum of £25,000 (inclusive of VAT).