Times Media Limited v Rayner (Costs) [2025] EWHC 2878 (Fam)

[2025] EWHC 2878 (Fam)Case No FD25P00554
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 10/11/2025
Before
MR JUSTICE MACDONALD
Between
TIMES MEDIA LIMITEDApplicantANGELA RAYNER (personally and as Trustee)First RespondentMARK JAMES RAYNER (personally and as Trustee)Second RespondentLUCY SARAH TAYLOR (as Trustee)Third Respondent
Mr Adam Wolanski KC (instructed by Reynolds Porter Chamberlain LLP) for ApplicantMs Samantha Hillas KC (instructed by Brabners) for First Respondent for The Second Respondent did not appear and was not representedMr Alexander Learmonth KC (instructed by Rothley Law) for Third RespondentHearing Hearing dates: 9 September 2025
Approved JudgmentThis judgment was handed down remotely at 10.30am on 10 November 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................MR JUSTICE MACDONALD
[1]On 5 September 2025, I granted an application by Times Media Limited (hereafter “TML”) represented by Mr Wolanski KC for an order permitting, subject to certain redactions, disclosure to TML of documents from the process by which the court approved the financial remedies order agreed between Angela Rayner, the former Housing Minister, Deputy Prime Minister and Leader of the Labour Party, and Mark James Rayner. Ms Rayner is represented in her personal capacity only by Ms Hillas KC. Mr Rayner is unrepresented and did not attend. Party to the process by which the court approved the financial remedies order financial remedy proceedings was the Professional Trustee of a bare trust established for one of Ms Rayner and Mr Rayner’s children. The Trust is represented by Mr Learmonth KC. Ms Rayner and Mr Rayner are also trustees.[2]Having heard the submissions of the parties, I granted permission for disclosure to TML of orders dated 23 June 2023 and 2 September 2025 and the position statement put before the court on 2 September 2025. The former order concerned the financial arrangements following the divorce of Mr Rayner and Ms Rayner. The latter order resulted from an application by Ms Rayner to be released from undertakings given in the order of 23 June 2023, to enable her to provide information to Sir Laurie Magnus, the Independent Adviser on Ministerial Standards, and to make a public statement to the media on 3 September 2025.[3]At the conclusion of the hearing, the Trust applied for an order that TML pay its costs in the sum of £15,522 inclusive of VAT. That application for costs was opposed by TML. In circumstances where the application by the Trust that TML pay its costs seemed to me to raise a tension between the possibly chilling effect of costs orders against the press when seeking disclosure and the need to preserve finite funds held in trust for the purpose of meeting the ongoing needs of a vulnerable minor and, in due course, adult, I reserved my decision on the question of costs and now set out my decision and my reasons for it.

BACKGROUND

[4]In 2020 a consent order was made in the then Queen’s Bench Division in settlement of a claim by the child of Ms Rayner and Mr Rayner for damages for clinical negligence. That order directed the establishment of a bare trust to hold the damages for the child in question. The trust was duly settled in May 2020. In addition, an anonymity order was made in relation to that claim pursuant to CPR r.39.2(3)(d). In January 2025 the current Professional Trustee was appointed.[5]On 23 June 2023 DJ Richmond, sitting at the Family Court in Manchester, approved a consent order that concluded the process by which financial arrangements following divorce had been agreed between Ms Rayner and Mr Rayner. During the course of the hearing listed to determine the application made by TML, it became clear that no financial remedy proceedings were issued, that the parties reached agreement without the need for such proceedings and that a financial remedy case number had been assigned to the matter only when the consent order was submitted to the Family Court sitting in Manchester for judicial approval. In that context, and subject to confirmation by Ms Hillas and those instructing her who did not represent Ms Rayner at the time, it appeared that the only document that resulted from the financial remedy process was the final consent order of 23 June 2023.[6]The order of 23 June 2023 dealt with the distribution of the former matrimonial home, including provision for Ms Rayner to retain a 25% beneficial share in that property, with the Trust receiving the remaining 75% beneficial share. In January 2025 Ms Rayner sold her remaining 25% beneficial share to the Trust and used the proceeds to purchase another property. That latter transaction came, in due course, to generate significant media interest in August and September 2025.[7]The consent order of 23 June 2023 contained undertakings given by Ms Rayner and Mr Rayner not to speak publicly about the financial arrangements incorporated into that order. In the context of the significant media interest to which I have referred, on 2 September 2025 HHJ Hess granted an application made by Ms Rayner, and supported by Mr Rayner and the Trustee, to release the Rayners from their undertakings under the order of 23 June 2023. Again, at this hearing it would appear that the only document produced as a result of the application to be released from undertakings granted by HHJ Hess was the order he made on 2 September 2025 to that effect.[8]As I have noted, her release from the undertakings in the order of 23 June 2023 allowed Ms Rayner to provide information to Sir Laurie Magnus, the Independent Adviser on Ministerial Standards, and to make a statement to the media on 3 September 2025 concerning the ownership of the former matrimonial home. During the course of a public statement Ms Rayner stated that she wished to set out the facts as openly and transparently as she could and made reference to undertakings contained in the order of 23 June 2023.[9]Thereafter, Ms Rayner went on in her public statement to describe the arrangement in respect of the former matrimonial home and the settlement of the trust which I have set out in summary above, including the reason for the establishment of that trust. That reason being, as Ms Rayner described it in her public statement, a deeply personal and distressing incident involving the parties’ son as a premature baby, who was left with life-long disabilities. Thereafter, Ms Rayner described the trust as having been established to manage on the child’s behalf the award of damages made in the proceedings in the Queen’s Bench Division, the child being the sole beneficiary of the Trust. Ms Rayner went on to relate that, in order to ensure stability for the child in a home adapted for their needs, the parties’ interest in the family home was transferred to the Trust, with Ms Rayner later selling her remaining beneficial interest in the property to the Trust as I have described.[10]Ms Rayner resigned from her ministerial position, as the Deputy Prime Minister and as the leader of the Labour Party on Friday 6 September, following the Prime Minister's ethics adviser finding that Ms Rayner had breached the Ministerial Code in relation to her omitting to pay the correct amount of tax on the property transaction to which I have referred.[11]On 5 September 2025, TML wrote to the President of the Family Division seeking copies of the two orders mentioned by Ms Rayner in her public statement, namely the order of 23 June 2023 containing the undertakings and the order of 2 September 2025 releasing Ms Rayner and Mr Rayner from those undertakings. The President required TML to make a formal application to the Family Court. That application was issued on 5 September 2025 and sought the following relief:
“An order for: disclosure of an order (or orders) made in proceedings involving Angela Rayner (nee Bowen) in 2023 and on 2 September 2025; or for disclosure of information about the proceedings (such as, but not limited to, the relevant court, case number and/or case title) to enable the applicant to make an appropriately confined application for documents or information.”
[12]On 5 September 2025, I made a directions order on the papers allocating the matter to myself, and directing service of the application on Ms Rayner, Mr Rayner and the Trust. I listed the matter before me for hearing on 9 September 2025. The order was provided to those representing TML by the Clerk of the Rules on the same day at 1555hrs. Accordingly, there were three days, one of which was a business day, between the order requiring service of the application on the Trust (which was identified in the order) and the hearing on 9 September 2025.[13]During the course of submissions at the hearing before me on 9 September 2025, it became clear to the court that there was a substantial measure of agreement between the parties in the context of it being likely that the only document to emerge from the financial remedy proceedings was the order of 23 June 2023 and the only document to emerge from the application heard on 2 September 2023 was the order of that date.[14]Ms Rayner did not oppose the release to TML of the documents to which I have referred, subject to redactions proposed by the Trustee. Subject to those redactions, the Trust likewise had no objection in principle to certain information relating to the financial remedies proceedings being disclosed to TML. That position was made clear in Mr Learmonth’s Skeleton Argument on behalf of the Trust, which was served on TML on the afternoon of Monday 8 September 2025. On behalf of TML, Mr Wolanski did not seek to oppose at the hearing either the nature or extent of the redactions proposed on behalf of the Trust with respect to the documents to be disclosed and, during the hearing, expressed TML to be neutral in respect of the same.[15]In the foregoing circumstances, I granted permission for disclosure to TML of orders dated 23 June 2023 and 2 September 2025 made in the proceedings and the position statement put before the court on 2 September 2025. In addition, and in circumstances where TML took no position on the issue, on the application of the Trust I granted an order under CPR rr.5.4C(1) and 5.4D(1) prohibiting the provision of documents from the personal injury claim to any non-party without an application and that any application under r.5.4C(2) should be on notice.[16]Finally, and as I have noted, Ms Hillas and her instructing solicitor did not represent Ms Rayner in June 2023. In the circumstances, and quite properly, Ms Hillas was not in a position to confirm, definitively, that no bundle and an index thereto was prepared when the agreed financial remedies order was submitted to the Family Court sitting in Manchester in June 2023. In the circumstances, I further directed that if any index were discovered in the review of documentation that Ms Hillas’ instructing solicitor intended to undertake should be disclosed to TML to inform any further application for disclosure and permission to disclose information, subject to the same provisions as to redaction that I have outlined already, but that if no index is found to exist the proceedings would stand concluded.

SUBMISSIONS

[17]Within the foregoing context, the Trust now seeks its costs in the sum of £12,935 plus VAT, giving a total of £15,522. On behalf of the Trust, Mr Learmonth submits that: i) No pre-action correspondence was received from TML, either prior to TML issuing its application or once TML had been provided with the details of the Trust in the directions order made by the court and served on TML on 5 September 2025. ii) Upon the Trust being made aware of the application by TML the Trust promptly indicated by 8 September 2025, through the Skeleton Argument provided by Mr Learmonth, that it did not object to TML being provided with copies of the orders, subject to certain redactions. iii) It is clear from the hearing of its application that 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. iv) In the circumstances, it was clear from the afternoon of 8 September 2025 that the matter was capable of being dealt with by consent but TML made no effort to compromise the matter, necessitating an attended hearing. v) The only 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 expressed itself to be neutral. vi) The application has caused the Trust to incur legal costs that must be paid out of damages awarded to a vulnerable child and, in due course, adult for the purpose of meeting future welfare needs. In these circumstances, the weight to be accorded when determining costs to the public interest in the media being able to report is diminished. vii) This is not an ordinary situation of contentious litigation. The Trust is an ‘innocent party’ to the application in circumstances where it is required to be served to protect the interest of the child within the litigation. viii) It would be unjust in the foregoing circumstances for the damages awarded to a vulnerable child for the purpose of meeting future welfare needs to be diminished by reason of the actions of an organisation pursuing a private commercial interest, namely the sale of newspapers.[18]The application for costs is resisted by Mr Wolanski on behalf of TML, who makes the following submissions: i) The application by TML on 5 September 2025 was listed at short notice on 9 September 2025. In the circumstances, there was no proper opportunity to compromise the matter ahead of the hearing on 9 September 2025. ii) The issues raised by TML’s application required to be ventilated before the court. iii) There were matters of contention that were not decided in favour of the Trust and the balance of success falls in TML’s favour. iv) The application concerned matters of obvious public interest in circumstances where other press organisations also sought to cover the story. It would not be just for TML to have to bear the costs of the Trust in circumstances where it acted in the public interest. v) The proper order is, accordingly, no order as to costs.

RELEVANT LAW

[19]Trustees and personal representatives have a duty to protect the trust fund and, if in complying with this duty they are able to recover costs from another party, they may seek a litigation costs order, that is, an order in relation to the subsisting legal proceedings, as between the parties to those proceedings, in the ordinary way.[20]One of the difficulties in this case has been to identify which costs regime applies to the present application by the Trust for its costs. However, in determining the merits of the substantive application I was satisfied that the application made by TML by way of Form N244 was properly characterised as a disclosure application made by a non-party in the substantive proceedings that approved the financial remedy order agreed between Ms Rayner and Mr Rayner, in circumstances where that application by TML sought disclosure of material from those proceedings.[21]Within this context, and whilst I did not receive submissions on the point, I consider that it is the costs regime set out in Part 28 of the FPR 2010 that governs the costs position in this case. However, and in any event if that conclusion is not correct, the practical effect of that conclusion is limited in this case by the fact that large parts of the CPR costs regime are applied in family proceedings notwithstanding the provisions of Part 28 of the FPR and where TML is a “party” to this application for disclosure 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.[22]In the circumstances, in determining the application for costs by the Trust in this case I am satisfied that the court should do so by reference to the matters set out in CPR r.44.2(4) to 44.2(7) having regard to the submissions made to, and the conclusions drawn by, the court at the hearing of the application and its assessment of the behaviour of the parties to the application.

DISCUSSION

[23]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.[24]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.[25]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.[26]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.[27]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.[28]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).”
[29]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.[30]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.[31]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.[32]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.[33]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.[34]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.

CONCLUSION

[35]In all the circumstances, including the circumstances listed in CPR r.44.2(4) and elaborated in r.44.2(5), I am satisfied in the exercise of my discretion that the general rule should be departed from in this case and the costs order that justice requires is that TML shall pay the costs of the Trust summarily assessed as £8,500 plus VAT, being the costs associated with preparing for and attending comprising leading counsel’s fee of £7,500, the costs of attendance from the solicitor of £450 and a sum of £550 to reflect the solicitor’s preparation required for attending the hearing.[36]In the circumstances, I will order that TML pay the costs of the Trust summarily assessed in the sum of £8,500 plus VAT.