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Application for costs over Rustat memorial fails

08 June 2022

Alamy

The memorial to Tobias Rustat in Jesus College, Cambridge

The memorial to Tobias Rustat in Jesus College, Cambridge

THOSE who opposed the unsuccessful petition of Jesus College, Cambridge, for the removal of the memorial dedicated to Tobias Rustat from its chapel (News, 25 March, 14 April) have failed in their application for their costs to be paid by the college.

The general rule in secular courts, that the unsuccessful party will be ordered to pay the costs of the successful party, does not apply in contested proceedings in the Consistory Court, where all parties are expected to meet their own legal expenses. The Chancellor has a discretion, however, to award costs between parties when unreasonable behaviour is said to have occurred.

Mr Justin Gau, who appeared for the 65 “parties opponent”, argued that Jesus College had behaved unreasonably at every stage of the proceedings by failing in its duty to enable the court to deal with the case justly, to save expenses, and to ensure that the case was dealt with expeditiously and fairly. He applied for the college to pay the costs of the parties opponent of some £42,300.

The College maintained that the petition was properly brought and that it had done nothing unreasonable in lodging and pursuing the petition. It had the support of the Church Buildings Council and others.

Mr Gau submitted that, before the publication of the Consistory Court’s substantive judgment, the college inappropriately posted on its website a robust rejection of the evidence that the college had spread a “false narrative”. To mislead people logging on to the college website was said to be reprehensible and unworthy of a college in the University of Cambridge.

Professor Lawrence Goldman, a party opponent, said that it was unreasonable of the college, acting in its pastoral role, to have fed its students a “false narrative” about Rustat’s life and engagement with slave trading. Before disturbing and inciting the students, as an academic institution, it should have ensured that it was in full command of the facts and presented them accurately.

Having done that, it was said to be unreasonable of the college to have come before the court without direct evidence of the pastoral harm it claimed was being caused by the retention of the Rustat memorial in the chapel. That claim was asserted by the college, and was central to its case, but was unevidenced throughout the proceedings, it was submitted.

Responding to accusations of presenting a “false narrative”, the College said that all of the information that it distributed had been “fair, accurate, and balanced”, and that the article posted on its website had not been misleading. 

Furthermore, the college said, it had not wished to subject its students to the intense media pressure of giving evidence in these proceedings, or to expose them to any risk of harm. It elected, instead, for the Dean to speak about these issues, drawing on his direct conversations with students under his pastoral care. 

The Deputy Chancellor, the Worshipful David Hodge QC, said that the court and the general public owed a great debt of thanks to the parties opponent. Without their interest, the college’s proposals might not have received the level of attention and scrutiny that the court had given to this case. If the touchstone for the award of costs were the extent and significance of the disinterested contribution that a party had made to the outcome of a case, the Deputy Chancellor said, he would have no hesitation in making an award of costs in favour of the parties opponent. But that was not the criterion.

Because it was important that all the issues for and against the grant of a faculty should be fully examined, it was right and in the public interest that parties should not, in general, be penalised simply because they were unsuccessful. A party to faculty proceedings would be ordered to pay or contribute towards another party’s legal costs only if it had behaved unreasonably in the conduct of the proceedings, and that behaviour had necessarily resulted in additional costs’ being incurred by that party.

The court’s decision not to permit the removal of the memorial had proved to be controversial. The college firmly disagreed with it, and considered the decision to be wrong. It had vociferously expressed that view in the media. The college was not alone in that view. Some 160 individuals, led by a former Archbishop of Canterbury, were signatories to a letter to the Church Times expressing their disappointment with the decision (Letters, 1 April). Mr Gau said that, if the college believed that the court’s judgment was flawed, the place to argue that was on appeal to the Court of Arches and not on this costs application, let alone in the media.

The Deputy Chancellor said, however, that the Master, the Dean, and others at the college and elsewhere were entitled to exercise their right to freedom of expression under article 10 of the Human Rights Convention to disagree with, and to criticise, the court’s judgment. Even robust criticism, he said, could not possibly be viewed as an impermissible challenge to the authority, or the impartiality, of the ecclesiastical judiciary; as with any judge, it came with the territory.

The Deputy Chancellor found that there had been no unreasonable conduct on the part of Jesus College, and the unreasonable behaviour asserted on the part of the college had resulted in no material increase in the costs incurred by the parties opponent. The application of the parties opponent for costs was therefore refused.

The college, as petitioners, was ordered to be responsible for all the court fees incurred in the petition, to be assessed by the Registrar, as well as the judgment fees.

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