The Court of Appeal has told an HS2 protestor found in contempt of court that he cannot escape costs penalties for losing his case.

Elliott Cuciurean was found to have made 12 incursions into woodland in Warwickshire which was subject to an injunction restraining trespass. The order included a notice that disobedience could lead to contempt proceedings.

Mr Justice Marcus Smith imposed a suspended custodial sanction on Cuciurean and ordered that he pay £25,000 towards the claimants’ costs of bringing the case (reduced from the £39,905 claimed).

Appealing the costs element, Cuciurean’s lawyers argued that the judge ought to have regarded that the sentence and costs order together amounted to an interference of his right to freedom of expression, and that this ruling was disproportionate.

But in The Secretary of State for Transport & Anor v Cuciurean, Lord Justice Lewison found that contempt cases were not, even in protest cases, in some ‘special category’ which made them exempt from Civil Procedure Rules.

Elliott Cuciurean outside Westminster Magistrates' Court in London, 2019

The Court of Appeal ruled out placing Cuciurean in a ‘special category’ because he was protesting

Source: Alamy

Lewison said the court making the injunction had ‘struck the balance between competing rights, tailored to the peculiar facts of the case in question’.

He added: ‘A person who, with knowledge of the order, chooses consciously and deliberately to disobey it knows beforehand what it is he should not do.’

He said the claimants – in this case HS2 and the Department for Transport – had their own rights to the peaceful enjoying of property, which were not overridden by articles 10 and 11 of the Human Rights Act, which grant the rights to freedom of peaceful assembly and to freedom of expression.

‘[The claimants] have sought and obtained the protection of the court in protecting and enforcing those rights. In order to vindicate those rights and that protection, they have been compelled to incur legal costs,’ said Lewison.

‘In a case brought under the law of England and Wales, the principal sanctions involved (a fine or a prison sentence) are essentially matters between the contemnor and the state, and do not directly benefit or compensate the applicant for committal.

‘Only the costs award does that. Not to award the claimants their costs reasonably and proportionately incurred in vindicating their rights would be to derogate from those rights.’

The appeal was dismissed, a decision supported by Lady Justice Asplin and Lord Justice Edis.

 

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