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England and Wales High Court (Family Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> A and S (Children) v Lancashire County Council  EWHC 851 (Fam) (17 April 2013)
Cite as:  EWHC 851 (Fam),  2 FLR 122
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B e f o r e :
|A and S (Children)|
|Lancashire County Council|
Malcolm Sharpe (instructed by LCC Legal Services) for LCC
Crown Copyright ©
Mr Justice Peter Jackson:
(1) an application to revoke A's Freeing order, issued by A.
(2) an application to revoke S's Freeing order, issued by LCC.
(3) an application for a Special Guardianship order in respect of A.
(4) a claim under the HRA by A.
(5) a claim under the HRA by the Official Solicitor on S's behalf.
44.3 Court's discretion and circumstances to be taken into account when exercising its discretion as to costs
(1) The court has discretion as to –(a) whether costs are payable by one party to another;(b) the amount of those costs; and(c) when they are to be paid.
(2) If the court decides to make an order about costs –(a) the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party; but(b) the court may make a different order.
(4) In deciding what order (if any) to make about costs, the court must have regard to all the circumstances, including –(a) the conduct of all the parties;(b) whether a party has succeeded on part of his case, even if he has not been wholly successful; and(c) any payment into court or admissible offer to settle made by a party which is drawn to the court's attention, and which is not an offer to which costs consequences under Part 36 apply.
(5) The conduct of the parties includes –(a) conduct before, as well as during, the proceedings and in particular the extent to which the parties followed the Practice Direction (Pre-Action Conduct) or any relevant pre-action protocol;(b) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;(c) the manner in which a party has pursued or defended his case or a particular allegation or issue; and(d) whether a claimant who has succeeded in his claim, in whole or in part, exaggerated his claim.
"The court may at any time make such order as to costs as it thinks just."
" … The rules about costs must be applied fairly to all litigants, regardless of who they are. In this case, all the costs of litigation will be borne by the public purse. The Legal Services Commission is an equally hard-pressed public agency and the Commission – and the taxpayers who fund it – are entitled to look to the court to apply the costs rules impartially and ensure that there is a level playing field. Gone are the days when it is appropriate for a court to dismiss applications for costs on the basis that it all comes out of the same pot. …"
The parties' submissions summarised
Submissions of A and S
(1) These were in effect civil proceedings, to which the CPR should apply. While the boys' claims were for revocation of the freeing orders, with ancillary claims brought under the HRA, in reality the revocation case was overwhelming and unopposed by any party and the focus of the litigation was on the human rights violations. This was reflected in the way the court directed Particulars of Claim and Defences, a procedure that would not ordinarily be required under s.7(1)(b) of the HRA or indeed under the FPR. LCC should not be able to escape the civil costs rules merely because the HRA claim was litigated in the course of family proceedings rather than as a free-standing application.
(2) Having said that, the same result is reached, whatever the route. LCC should pay the boys' costs. It blatantly disregarded guidance, advice, the fundamental principles of the Children Act 1989 and its Convention obligations.
(3) When challenged, the response of LCC was at first defensive, then passive, making concessions late and only when unavoidable, in contrast to the active engagement of the IRO. For example, it initially denied the core allegations that the boys had suffered the loss of a permanent adoptive placement, a settled family life and family relationships. "The consequence… was that the Claimants were, in effect, put to strict proof of their allegations until the overwhelming weight of them was finally absorbed by the Local Authority, in effect at the doors of the court."
(4) Costs should be awarded on the indemnity basis. The test articulated by Simon Brown LJ in Kiam v MGN Ltd (No 2)  2 All ER 242 is met:"… such conduct would need to be unreasonable to a high degree; unreasonable in this context certainly does not mean merely wrong or misguided in hindsight. An indemnity costs order made under Pt 44 (unlike one made under Pt 36) does, I think, carry at least some stigma. It is of its nature penal rather than exhortatory."
Submissions of LCC
(1) All applications and claims were dealt with as family proceedings and the appropriate rules as to costs are the FPR. The HRA claims were, as a matter of good practice, brought within the family proceedings. Pleadings were for the purpose of issue identification, and did not amount to an adoption of the CPR.
(2) No order for costs is the appropriate order. The welfare orders and plans for the children's future were the primary focus of the court's attention. The care plans presented by LCC were duly approved by the court.
(3) There being no presumption that costs follow the event, the key criterion is that of the conduct of the parties. LCC acted cooperatively, as the court acknowledged at paragraph 16 of its judgment. For example it:
- gave copious voluntary disclosure, providing a copy of the 'master bundle' (containing the full social services records, education records, medical records and previous legal proceedings of each child, all of which it obtained, collated and distributed) and assisting the applicants to find their way though the data; as a result the factual basis for the applications and claims was clear and obvious in each case.
- adopted a policy of seeking to make appropriate admissions at the earliest opportunity. The entire process took less than two months, a far quicker timetable than a normal civil proceeding.
- agreed to the appointment of an independent social worker
- promised that S's children's home should not be closed without proper consultation
- funded leading and junior counsel for the IRO
- funded the Special Guardianship application in relation to A.
(4) The costs sum sought represents a very significant sum and the payment of which would require extensive budgetary re-organisation possibly affecting overlapping financial years and impacting upon presently costed services.
(5) The sums sought are excessive, a number of detailed comments being made.
(6) The determination of the costs issue can be adjourned to await the outcome of the QBD proceedings. In the meantime, a full costs schedule can be presented so that the claim can be properly scrutinised.
Response of A and S
(2) Reference is made to the findings which led Ryder J to make a costs order in WBC v CP & LPM (above):
"a) the local authority's actions are tainted with illegalityb) the local authority's decision making was impoverished and disorganisedc) the local authority is responsible for the delay in referring CP's circumstances to the Court of Protection and/or the High Court in its children and inherent jurisdictionsd) the local authority could have arrived at the position concluded by the court many months earlier."
(3) There is no reason to postpone a decision. The issues of liability and quantification are separate, and this court is in the best position to assess the merits.
Response of LCC
(2) The conduct to which attention should be directed is litigation conduct, and not conduct in a broad or general sense: Hall v Rover (above).
(3) A detailed account of the chronology demonstrates genuine cooperation by LCC: the account of events given by the Applicants is exaggerated. Nothing in LCC's litigation conduct could properly be considered as reprehensible. The action was a model of co-operation, disclosure and issue identification which, despite the constraints placed upon the parties by the short timetable enabled complex matters to be dealt with in an efficient and effective manner.
(4) A fortiori, the same applies to the application for indemnity costs.
Note 1 “ The task of charting this sad narrative has been made easier by the co-operative approach of the parties. As a result, the only oral evidence required at the hearing was brief testimony by the IRO. It has been a considerable achievement upon which I congratulate the parties and their advocates.”
Note 1 “ The task of charting this sad narrative has been made easier by the co-operative approach of the parties. As a result, the only oral evidence required at the hearing was brief testimony by the IRO. It has been a considerable achievement upon which I congratulate the parties and their advocates.” [Back]