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Wilkinson v Kitzinger and Attorney-General (Lord Chancellor intervening) [2006] EWHC 835 (Fam)

Application for protective costs order (PCO) by petitioner seeking declaration as to marital status refused, but limit imposed on Lord Chancellor’s costs.

Family Division: Sir Mark Potter P (12 April 2006)

Application for protective costs order (PCO) by petitioner seeking declaration as to marital status refused, but limit imposed on Lord Chancellor's costs.

In August 2003, the petitioner and the first respondent went through a form of marriage, lawful and valid by the law of British Columbia which recognises the validity of marriages between persons of the same sex. The petitioner was seeking a declaration under section 55 of the Family Law Act 1986 that the marriage was valid at its inception and, if necessary in order to make such a declaration, a further declaration of incompatibility under section 4 of the Human Rights Act 1998 in relation to section 11(c) of the Matrimonial Causes Act 1973 (which provides that a marriage celebrated after 31 July 1971 is void where the parties are not respectively male and female). By virtue of the relevant provisions of the Civil Partnership Act 2004, in force from 2005, the couple were treated as having formed a civil partnership and not as being married.

The petitioner brought the proceedings against the first respondent who, as her civil partner, supported her position and had no interest in opposing the proceedings. The Attorney-General was joined as a party but chose not to take an active part in the proceedings, preferring instead that the Lord Chancellor should present arguments on the Crown's behalf, as he was entitled to do pursuant to section 5 of the Human Rights Act 1998.

The Lord Chancellor had made it clear that he considered these proceedings to be misconceived as a matter of law and that, should he be successful in resisting the proceedings, he would seek an order for costs against the petitioner. Accordingly, the petitioner sought 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 President reviewed the relevant costs rules, and referred to the decision in R (on the Application of Corner House Research) v Secretary of State for Trade and Industry [2005] EWCA Civ 192 ('the Corner House case'), which set out the principles governing the making of PCOs in public law cases raising issues of general public importance, thereby allowing claimants of limited means access to the courts without the fear of substantial orders for costs being made against them.

Although the present case was concerned with private law proceedings, the parties agreed that they were essentially 'quasi-public' in nature, in the sense that they went to matters of status, they were directed to the elucidation of public law, and they involved proceedings which might appropriately be brought in the Administrative Court but for the statutory provision contained in section 55 of the 1986 Act.

The President considered that it was not appropriate to make a PCO in this case; however, he imposed a cap of £25,000 on the amount of the Lord Chancellor's costs.

The President measured the facts of the case against the governing principles stated in the Corner House case (quoted in full in this case), and found that sufficient material existed to advance the following argument: 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 was 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 those enjoyed by married couples, the validity and dignity of the ceremony and title of marriage itself was denied to them. Nevertheless, a significant hurdle to be overcome was the requirement to tie such discrimination to an infringement of rights under Article 8 and/or 12 of the European Convention, a task made more difficult by the House of Lords' decision in Secretary of State for Work and Pensions v M [2006] UKHL 11.

Further, it was questionable whether this case raised an issue of general public importance, since it concerned an area where the law was clear (ie the distinction between marriage and civil partnership was clearly laid down and readily applicable), and. the action was being brought not to uphold the law as recently enacted but to secure its change.

Finally, the President did not consider that the petitioner would be unable to meet an order for costs (capped as referred to above) if an award of costs were considered appropriate at the end of the litigation.

Read the full text of the judgment here