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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Brookes, R (on the application of) v Secretary of State for Work & Pensions [2009] EWHC 1177 (Admin) (16 May 2009)
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Cite as: [2009] EWHC 1177 (Admin)

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Neutral Citation Number: [2009] EWHC 1177 (Admin)
CO/2086/08

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

Royal Courts of Justice
Strand
London WC2A 2LL
Monday, 16th May 2009

B e f o r e :

TIMOTHY CORNER QC
(Sitting as a Deputy Judge of the High Court)

____________________

Between:
THE QUEEN ON THE APPLICATION OF BROOKES Claimant
v
SECRETARY OF STATE FOR WORK & PENSIONS Defendant

____________________

Computer-Aided Transcript of the Stenograph Notes of
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____________________

Mr Burrows (Solicitor-Advocate) (instructed David Burrows) appeared on behalf of the Claimant
Mr T Buley (instructed by Office of Solicitors) appeared on behalf of the Defendant

____________________

HTML VERSION OF JUDGMENT
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Crown Copyright ©

  1. 1.1. THE DEPUTY JUDGE: This is a claim by Anthony James Brookes, in relation to the Secretary of State's alleged failure to deduct from his liability for child support maintenance voluntarily payments allegedly made.
  2. 2.1. The relief sought by the claimant is set out at page 3 of the bundle, namely; (i) a declaration that he is entitled to an explanation from the Secretary of State as to how and what voluntarily payments are taken into account in deduction of his liability to support child support maintenance and an explanation as to why the payments which are claimed are not set against his liability; (ii) a declaration as to the consequent amount of arrears outstanding and due from him to the Secretary of State for his former wife, Kim Brookes; (iii) a quashing order in respect of the liability orders made in August 2003 and March 2006 by Bristol Magistrates' Court and a consequent order quashing the charging orders made in Bristol County Court and registered against the title to the claimant's property; (iv) a declaration as need be and on an interim basis that all enforcement action be suspended pending the outcome of this claim for judicial review. The claim was filed on 22nd February 2008. Permission to apply for judicial review was refused by His Honour Judge Hickinbottom (as he then was) on 27th May 2008.
  3. 3.1. The root of the case here was, it seems to me, the decision of the Secretary of State in relation to the extent to which he would allow voluntarily payments by the claimant to be set against the liability for child support maintenance. The Secretary of State set out his position in a letter of 5th May 2006 and there is a further letter of 6th July 2006 also.
  4. 4.1. It seems to me that time must run either from the letter of May 2006 or at the very latest from the July 2006 letter, but, in my judgment, time runs from 5th May because that is the decision. The letter of 6th July 2006 merely explains it further, or gives further comment on it. I do not think that a challenge can be made from the date of any decision to enforce. It seems to me that if that were so it would be simply a way of getting round the rules on when challenges should be brought. So, it seems to me that time must run from May 2006.
  5. 5.1. Further, there is no separate challenge that can be made here, in my judgment, to every decision to pursue enforcement of the arrears, the decision as to the amount of which arrears was made by the Secretary of State back in 2006.
  6. 6.1. That means that I must deal with the time at which these proceedings have been brought. I am afraid I cannot see any justification for the delay in commencing these proceedings until 2008. Mr Burrows' firm was already instructed in 2006; there was nothing stopping commencement of proceedings. No good reason for the delay has been given. I accept that it is in the public interest in this field that decisions, if they are to be challenged, must be challenged promptly. I would be minded, on that ground alone, to refuse permission.
  7. 7.1. I turn to the substantive point here. It is a challenge to the Secretary of State's decision about how much he should allow by way of voluntarily payments. It is accepted that the Secretary of State has a discretion as to the extent to which he sets off such voluntarily payments against liability. The claimant's case is that although the Secretary of State has a discretion, that discretion must be exercised reasonably. It appears that in this case some payments were taken on board by the Secretary of State and allowed to be set off against liability. Mr Brookes claimed that he had made further voluntary payments. It is apparent from the submissions before me that the Secretary of State did not allow further payments to be set off, because he did not accept that they had been made. Indeed I am told, that they were payments at least in large part to the person with care-and the person with care did not accept that they were made. In those circumstances, it was not arguable that the Secretary of State's exercise of discretion in this regard was unlawful or irrational or that it took account of irrelevant considerations or failed to take account of relevant ones. It was suggested that the Secretary of State should take into account section 2 of the 1991 Child Support Act. It was accepted by the Secretary of State that the Secretary of State's duty to take account of children in that section would include children of another partnership. There are such children here.
  8. 8.1. It is true that there is no specific reference in the Secretary of State's decision, as I have held it was, of May 2006 to taking account of the welfare of those children. However, I am told-and it was not challenged-that no information was ever advanced about why the welfare of the children of the current partnership would be adversely affected, if at all, by a requirement to make maintenance payments in accordance with the relevant legislation.
  9. 9.1. Furthermore, I find it hard to see how this could have made a difference in any event because all that is being said is that there were further payments that should have been set against the liability. The Secretary of State did not accept that they were made. Therefore I cannot see how an express mention of section 2 could have made a difference to that.
  10. 10.1. In all circumstances, (a) because I see nothing in the substance of this claim; and (b) even if I did, I would consider the delay inexcusable, I must refuse permission.
  11. 11.1. MR BULEY: My Lord, I am very grateful. I do have a very short application. I wonder if I can deal with that briefly now.
  12. 12.1. THE DEPUTY JUDGE: Yes.
  13. 13.1. MR BULEY: My Lord, when (as he now is) Hickinbottom J refused permission, he made an order for costs for the acknowledgement of service. I do not think that I need to ask your Lordship to look again at that. I do not think it needs to be disturbed.
  14. 14.1. THE DEPUTY JUDGE: That is for £1350.
  15. 15.1. MR BULEY: Indeed. What I do say is that in accordance with Mount Cook principles, I do invite your Lordship to order the costs of today also. I know your Lordship is very familiar with the Mount Cook principles because you appeared in the case. Can I hand up copies just to refresh some memories? My Lord, the summary of the Law, set by Auld LJ, is found in paragraph 76 of the judgment.
  16. 16.1. THE DEPUTY JUDGE: You would only get your costs of today in exceptional circumstances.
  17. 17.1. MR BULEY: That is absolutely right, I accept that, yes.
  18. 18.1. THE DEPUTY JUDGE: The question is whether there are any.
  19. 19.1. MR BULEY: My Lord, we say there are two. The relevant paragraph is subparagraph (v) in paragraph 76.
  20. 20.1. THE DEPUTY JUDGE: Can you give me a moment; I will find the relevant passage in the White Book as well. I have it.
  21. 21.1. MR BULEY: Exceptional circumstances may consist in any of the following: (a) the hopelessness of the claim; (b) the persistence in it by the claimant having been alerted to statute law demonstrating hopelessness and (c) the abuse of process, if I paraphrase it in that way. We do respectfully say that all those circumstances are present here. As to the hopelessness of the claim, your Lordship has refused permission. I accept entirely that is not enough. In other words "hopeless" here means something rather more than that, otherwise you get costs in every case. I appreciate that. However, my Lord, bearing in particular the delay point, we would say that this plainly is a wholly hopeless claim, one that could not ever have succeeded. It was 18 months late and therefore 15 months out of time. The court sometimes extends time for bringing claims for a short period of time. It is inconceivable, we say, that the court would ever accept having extended it by that period of time.
  22. 22.1. THE DEPUTY JUDGE: It might not be unknown but it is rare.
  23. 23.1. MR BULEY: There has to be a very, very good reason for the delay. It is different, I accept, if you have a case where someone is not aware of the decision under challenge, something of that kind. Plainly that is not the situation. As your Lordship pointed out, Mr Burrows has been instructed throughout. First of all, the hopelessness of the claim. Secondly the persistence in it. It is very, very clear from the order of His Honour Judge Hickinbottom that delay is fatal to this claim. Perhaps your Lordship will turn it up and read again what he says about it.
  24. 24.1. THE DEPUTY JUDGE: I have it here.
  25. 25.1. MR BULEY: Finally, abuse of process. Obviously I do not have direct evidence as to the claimant's motives in bringing this claim. One is entitled to draw an inference. This is a claimant who must have known this claim was hopeless, for the reasons I have already said, and who chose to pursue it nonetheless in circumstances where there was an immediate and definite advantage solely by doing so because it delays the evil day. It delays the time from which he will be actually required to pay any money pursuant to the liability order. That is point again made by His Honour Judge Hickinbottom in refusing permission, in observing that that was the real motive for pursuing the claim in the first place.
  26. 26.1. My Lord, all three of those circumstances are present in this case. This is a claimant who is pursuing this claim, who knows or ought to know the claim is hopeless and who nevertheless persists in it for what is effectively a collateral purpose, not related to any real belief in it being capable of succeeding. In those circumstances, I do say that this a proper case for the order of costs of today conditioned to the earlier costs.
  27. 27.1. My Lord, one further point also. As your Lordship knows also, the premise behind the Mount Cook principles is that a defendant is not required to attend the hearing. Of course I accept that that is so. The Mount Cook principles do not apply or at least have considerably less force in a case where it is reasonable for a defendant to do. In this case, my Lord, we were served with a new skeleton argument and a new bundle on Friday, ie a day before the hearing, raising a new point about the Bird case. In those circumstances it is entirely reasonable for the defendant to attend and reasonable for him to seek his costs for doing so. That is how I put it. It is a matter for the discretion of the court I appreciate, but there it is.
  28. 28.1. THE DEPUTY JUDGE: Mr Burrows, what do you say?
  29. 29.1. MR BURROWS: I cannot argue with that last point, my Lord, the very last submission. In a sense that was the only reason why it seemed that Mr Brookes could pursue this claim was because of Bird and, my Lord, you have found against me. You take a different view. I cannot argue with Mr Buley's submission on that last point.
  30. 30.1. Mr Brookes finally was able to, through the assistance of my firm, you may say whether that is wrong or not, was able to persuade the Legal Services Commission that he should be eligible for public funding during the course of last week. That is why all of this is being done so late in the day. He was stirred into coming back to us, albeit the form 86B had been filed. There was nothing further heard from Mr Brookes until he was served with the letter, saying that he was liable to be committed to prison -- the Secretary of State contemplated those proceedings. That is what started things off again in late January. That is why all of this has been rather telescoped by that sequence of events. But for the combination of the committal application, Bird and the coming into force of the 2008 Act, I suspect this case would not have been here today. You are plainly not impressed by my arguments on the 2008 Act point. To a limited extent only, the time in question on the third aspect. So, my Lord, having accepted that there were further points which necessitated Mr Buley's attendance, I accept that I am in difficulties in opposing a claim for costs. I am an assisted litigant, so there are the procedures under what used to be section 17(1) of the Legal Aid Act, it is now section 11(2) of the Legal Aid Act. Those proceedings have to be undergone if you decide to make an order for costs.
  31. 31.1. As to Judge Hickinbottom's order, I do ask you to say that it is open to review. This 86B was filed before the 14 days was up. I certainly had anticipated that if this case did come on, the costs question would be looked at again. He made an order that was conditional upon Mr Brookes answering it. He answered it by saying--
  32. 32.1. THE DEPUTY JUDGE: I have it.
  33. 33.1. MR BURROWS: "The claimant makes such representations and the defendant has seven days to respond." My Lord, there are two other points on that. One, I am sure before another judge I have heard that that sort of process was being discouraged, the summary of assessment of costs in this way. I may be wrong. In this court I heard it is being discouraged. Secondly, I took it that the answer was in the form of 86B.
  34. 34.1. THE DEPUTY JUDGE: Before we get to amounts, let us deal with principles. Do you have anything to say in principle?
  35. 35.1. MR BURROWS: I say in principle that you have the power to make an order for costs today. It is as simple as that, my Lord.
  36. 36.1. THE DEPUTY JUDGE: It seems to me that there must, of course, be allowed to the Secretary of State, his costs of preparing the summary grounds. It is those that Judge Hickinbottom reversed in his order. Mr Buley goes beyond that and asks for the costs of today and draws my attention to the Mount Cook case [2004] 2 P & CR 405 and to paragraph 76(5). He says that this is an exceptional case (a) because of the hopelessness of the claim, (b) because the persistence in it by the claimant after having been alerted to facts and/or the law demonstrating its hopelessness and (c) abuse of process. I am not prepared to find that there was an abuse of process here, although one does suspect that there was here an element at least to which this claim was pursued in order to put off the evil day of financial reckoning. However, I do not need to make a decision under (c) because it does seem to me, I am afraid, that this was a hopeless claim and that the claimant persisted in it after having been alerted by Judge Hickinbottom's order, showing its hopelessness. In those circumstances the Secretary of State is entitled to its costs of today. Beyond that is the question of amount.
  37. 37.1. So far as the £1350 is concerned, I am wondering if we can deal with this reasonably expeditiously because I have two cases yet in my list, both of whom have been waiting very patiently as I am well aware. As far as £1350, Mr Buley do you accept that I can revisit this?
  38. 38.1. MR BULEY: I think I probably do, yes.
  39. 39.1. THE DEPUTY JUDGE: In that case we revisit it. You say it is reasonable. You say it is not reasonable?
  40. 40.1. MR BURROWS: I have said that since a long time. The summary grounds as Ewings reminds us… I suggested £500 which is just over 2 hours work.
  41. 41.1. THE DEPUTY JUDGE: I am going to say that given that it is accepted for the Secretary of State that I can revisit it, it seems to me that it would be reasonable to allow £1,000 for that, which is a lower amount than the £1350 which is claimed.
  42. 42.1. Now what about the amount claimed in respect of the costs of today. Again, do you have anything to say, Mr Burrows, about that amount? The amount that is claimed is £2,040.
  43. 43.1. MR BURROWS: I do not argue with Mr Buley's fees. Again 8 hours to respond to this seems an awful lot for the Secretary of State's solicitor's office, where much of the work must have been done in preparing summary grounds.
  44. 44.1. THE DEPUTY JUDGE: Mr Buley what do you say?
  45. 45.1. MR BULEY: I am going to be in your Lordships hands on this and I do not want to take up too much time. There has been a lot of correspondence in this case. It is a necessary feature of the case. One of the things that has generated an awful lot of course correspondence is the constant reminder to those acting for the claimant of the need to provide a bundle and material and so forth, as was pointed out by His Honour Judge Hickinbottom in refusing permission on the papers. That had not been done. It was in the event done a day before the hearing. Of course wholly unsatisfactorily. My solicitor was away and as it happens I was away also. It was reasonable to spend 8 hours.
  46. 46.1. THE DEPUTY JUDGE: Is there anything else?
  47. 47.1. MR BURROWS: A constant reminder is I think a gross exaggeration, my Lord, and I do not think it is true. But there it is. What can I say? I think I am in my Lord's hands.
  48. 48.1. THE DEPUTY JUDGE: It seems to me that 8 hours solicitor time since the preparation of the summary grounds is reasonable. Mr Buley's fee is not in dispute. In those circumstances there will be an order for the amount claimed of £2,040.
  49. 49.1. MR BURROWS: It must be subject to section 11 Access to Justice Act.
  50. 50.1. THE DEPUTY JUDGE: Yes, it must. That is absolutely true.
  51. 51.1. MR BULEY: That is right. Can I make this observation? We have not seen that. Ordinarily one is required to lodge the certificate.
  52. 52.1. MR BURROWS: I accept that and I have had considerable difficulty with the Legal Services Commission. You may say you are not surprised, my Lord, but there it is, I have, but it has been granted but is not yet available.
  53. 53.1. THE DEPUTY JUDGE: How do we proceed?
  54. 54.1. MR BULEY: Can I make a suggestion? Two points my Lord. Mr Burrows could, and this is quite commonplace, could undertake to lodge a certificate with the court when available.
  55. 55.1. MR BURROWS: I would any way, my Lord. It is in the regulations, my Lord, that I must.
  56. 56.1. MR BULEY: Secondly, the cost protection only applies to the later order because of the date on which legal aid was only granted. The £1,000 is not subject to it.
  57. 57.1. THE DEPUTY JUDGE: Very well. Good. Thank you very much both of you.


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