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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 >> P v A Local Authority  EWHC 2779 (Fam) (04 November 2016)
Cite as:  1 FLR 1589,  4 WLR 180,  WLR(D) 626,  EWHC 2779 (Fam)
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Strand, London, WC2A 2LL
B e f o r e :
|- and -
|A LOCAL AUTHORITY
Nicholas Stonor QC and Jacqueline Matthews-Stroud (instructed by Local Authority) for the Respondent
Oliver Jones (instructed by The Central Legal Team Legal Aid Agency) for The Lord Chancellor and The Legal Aid Agency
Hearing dates: 16 August 2016
Crown Copyright ©
MR. JUSTICE KEEHAN:
1. Upon it being declared and affirmed that:
a. [The local authority] is absolved from any and all obligation to consult, refer to, and/or inform [P's] parents, […] in relation to any aspect of his progress, development and/or well-being whilst he is a Looked After Child; the court being satisfied that [P's] welfare makes such a declaration necessary.
b. Further, or in the alternative, the declaration set out in (a) above shall absolve [the local authority] of all obligations to comply with any of the duties imposed on them by, or under, the Children Act 1989 in relation to any obligation to consult, refer to, and/or inform the parents. The Court being satisfied that in the exceptional circumstances of this case, such failure would amount to a reasonable excuse pursuant to section 84 Children Act 1989.
IT IS ORDERED:-
2. [The local authority] shall not share with the Respondent Parents:
a. Any information regarding the Applicant's medical treatment in relation to gender dysphoria whatsoever, whether that information comes from the Tavistock Centre, the Applicant's General Practitioner, CAMHS or another source;
b. Any information regarding the Applicant's wellbeing without the express consent of the Applicant;
c. For the avoidance of doubt [the local authority] is not permitted to share information with the Respondent Parents in case of emergency unless the Applicant consents, and only on the basis that the Respondent Parents agree that they will not visit the Applicant without his express consent. If the applicant is unable to consent [the local authority] is not permitted to share information with the Respondent Parents."
Everyone has the right to respect for his private and family life, his home and his correspondence.
There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
Declaration that his Article 8 rights have been unlawfully interfered with; and financial redress, the declaratory relief alone being insufficient as 'just satisfaction' (s8 HRA 1998). The unusual circumstances of this case make quantum difficult but by way of analogy the recent decision on wrongful use of s20 have fallen within the range £3000 - £20,000.
The pre-conditions to an award of damages by a domestic court under s 8, as set out in the case of Re H (A Child: Breach of Convention Rights: Damages)  EWFC 38 are that: (1) a finding of unlawfulness should be made based on breach by a public authority of a Convention right; (2) the court should have the power to award damages in civil proceedings; (3) that the court should be satisfied, taking account of all the circumstances of the particular case, that an award of damages is necessary to afford just satisfaction to the person in whose favour it is made; and (4) that the court should consider an award of damages to be just and appropriate.
Legal Aid Agency: Statutory Charge
"IT IS ORDERED:-
1. The Applicant shall, by 4pm 29th July 2016, serve upon both the Lord Chancellor and the Legal Aid Agency:
a. A copy of this order;
b. Copies of the skeleton arguments prepared on behalf of the Applicant and Respondent for today's hearing;
c. A copy of the bundle prepared for today's hearing.
These documents are being disclosed to the LAA and the Lord Chancellor for the purpose only of assisting them in responding to the court's requests of them contained within this order.
2. The Lord Chancellor is invited to waive the statutory charge in the unusual circumstances of this case.
3. The Lord Chancellor is invited to respond regarding the question of waiver by 4pm, 12th August 2016 in writing.
4. The Legal Aid Agency is invited to confirm to the Court and the parties in writing by 4pm 19th August 2016 whether the LAA will seek to recover any damages or other financial recompense awarded to the subject Ward by way of statutory charge.
5. The matter is listed for further consideration on 26th August 2016 at 10am before Keehan J, with a time estimate of 1 hour. Both the Lord Chancellor and the Legal Aid Agency is invited to attend that hearing. "
"Charges on property in connection with civil legal services
(1) Where civil legal services are made available to an individual under this Part, the amounts described in subsection (2) are to constitute a first charge on—
(a) any property recovered or preserved by the individual in proceedings, or in any compromise or settlement of a dispute, in connection with which the services were provided (whether the property is recovered or preserved for the individual or another person), and
(b) any costs payable to the individual by another person in connection with such proceedings or such a dispute.
(2) Those amounts are—
(a) amounts expended by the Lord Chancellor in securing the provision of the services (except to the extent that they are recovered by other means), and
(b) other amounts payable by the individual in connection with the services under section 23 or 24.
(3) Regulations may make provision for exceptions from subsection (1).
(4) Regulations may make provision about the charge under subsection (1) including, in particular—
(a) provision as to whether the charge is in favour of the Lord Chancellor or a person by whom the services were made available,
(b) provision modifying the charge for the purposes of its application in prescribed cases or circumstances, and
(c) provision about the enforcement of the charge.
(5) Regulations under subsection (4)(c) may, in particular, include—
(a) provision requiring amounts recovered by the individual in proceedings or as part of a compromise or settlement of a dispute, and costs payable to the individual, to be paid to the Lord Chancellor or a person by whom the services were made available,
(b) provision about the time and manner in which the amounts must be paid,
(c) provision about what the Lord Chancellor or the person by whom the services were made available must do with the amounts,
(d) provision for the payment of interest on all or part of the amounts,
(e) provision for the payment to the individual concerned of any amount in excess of the amounts described in subsection (2), and
(f) provision for the enforcement of requirements described in paragraph (a).
(6) Regulations under this section may include provision requiring information and documents to be provided."
(a) put legally aided individuals as far as possible in the same position as successful non-legally aided individuals (who are responsible at the end of their cases to pay their own legal costs if their opponent in litigation does not, or is unable, to pay them). The statutory charge converts legal aid from a grant into a loan. (See Davies v. Eli Lilly & Co  3 All ER 94 at 97 to 98);
(b) ensure that legally aided individuals contribute towards the cost of funding their cases so far as they are able; and
(c) deter legally aided individuals from running up costs unreasonably by giving them a financial interest in how much money is being spent.
Exceptions to the statutory charge
— (1) The statutory charge does not apply to the following property recovered or preserved by a legally aided party in relevant proceedings, or in any compromise or settlement of a relevant dispute,—
(a) any periodical payment of maintenance;
(b) any sum or sums ordered to be paid under—
(i) section 25B(4) (pensions) or 25C (pensions: lump sums) of the Matrimonial Causes Act 1973(11);
(ii) section 5 of the Inheritance (Provision for Family and Dependants) Act 1975(12) (interim orders);
(iii) Part 4 of the Family Law Act 1996(13) (family homes and domestic violence); or
(iv) paragraph 25(2) or 26 of Schedule 5 to the Civil Partnership Act 2004(14) (financial relief in the High Court or a County Court etc.);
(c) half of any redundancy payment within the meaning of Part 11 of the Employment Rights Act 1996(15) (redundancy payments etc.); or
(d) any sum, payment or benefit which by virtue of any provision of, or made under, an Act of Parliament cannot be assigned or charged.
(2) The statutory charge does not apply to—
(a) legally aided party's trade,
(b) the implements of a legally aided party's trade,
except where the Lord Chancellor considers that there are exceptional circumstances, having regard in particular to the value or quantity of the items concerned.
(3) Where, by virtue of regulation 7, the statutory charge is in favour of a provider, it does not apply to a legally aided party's main or only dwelling.
(4) Paragraphs (2) and (3) do not apply where the legally aided party is a legal person.
Those conditions are:
(a) the Director was satisfied, in determining that a legally aided party qualified for legal representation, that the proceedings had a significant wider public interest; and
(b) the Director in making the determination took into account that there were other claimants or potential claimants who might benefit from the proceedings:
see regulation 9 of the CLA(SC)R 2013.
"I accept that an award of damages made under Article 5 (5) of the European Convention on Human Rights is a serious matter. Detention by the State is, on any view, a very bad business. The award of damages — although they are customarily modest — should reflect the fact that it is only in Article 5 (5) of the Convention that compensation is mentioned. However I do not accept that awards of damages for State detention pursuant to the Convention are a class apart from all other types of damages. I do not accept that because they are awarded to Mr Faulkner as a victim of human rights violation that they should be subjected to a process of immunisation in the way that perhaps damages for personal injury or an award of damages for, say, the loss of an eye or a leg would not. Naturally, State detention is a bad business but the consequences of many personal injuries are far more long-enduring than temporary State detention as happened in this case by virtue of delay in convening a Parole Board hearing.
It is for these reasons that I reject the argument that there is some kind of special status or numinous quality to be attached to these damages. These damages are to be treated under the costs regime, in my judgment, in exactly the same way as any other damages. It is therefore for these reasons that the claim for judicial review is dismissed."
I agree and accept this submission.
The LAA's Submissions
"In this case the certificate for wardship proceedings was granted on 5 May 2015. The issue as to whether the statutory charge should apply was only raised at a later stage. On the information available, on 8 February 2016 the scope of the existing certificate was extended to cover an application for a declaration for breach of an injunction regarding disclosure of information. By letter dated 9 June 2016 funding to bring a claim for HRA breaches in the wardship proceedings was refused. The determination also stated that the conditions relating to waiver had not been satisfied because no specific individuals or group of individuals had been identified who would benefit from the proceedings and no clear indication of the number who might potentially benefit had been given, accordingly the case was determined not to meet the significant wider public interest test. No appeal has been received against his determination.
The present position is that the applicant does not presently have legal aid funding to bring a claim for damages under the Human Rights Act, although the certificate for wardship is still live. The LAA confirms that nevertheless, should P recover damages for breach of his Human Rights within the wardship proceedings, then section 25 of LAPSO will mean that the statutory charge (calculated by reference to the costs incurred under the certificate) would attach to those damages as a matter of law. In the absence of a waiver, that would mean that the only practical way of ensuring P receives any money would be for the court to order that the Local Authority pay the costs of the wardship proceedings (or for P's lawyers to make a claim under his certificate for their costs for those proceedings).
The submissions of the parties do not seek to argue that the statutory charge does not apply in this case but that it should be waived. Regulation 9 has been quoted in the Applicant's skeleton argument but surprisingly no reference is made to the fact that on 9 June 2016 the Director determined that the pre-conditions set out in that regulation do not apply. That decision has not been appealed and in the circumstances the discretion to waive the charge cannot apply on the facts of P's case.
The LAA notes that the present position has arisen due to the decision of RA's advisers to pursue this matter within these wardship proceedings. It is possible that if the alternative routes had been chosen (for example a maladministration claim or a claim in separate proceedings) this issue may well not have arisen as the wardship proceedings had concluded prior to the events giving rise to the HRA claim in this case."
(a) the decision of the LAA in this case is lawful, rational and fair;
(b) the conditions for a waiver of the statutory charge are not satisfied; and
(c) the applicant did not appeal the determination and decisions of the director.
Submissions of the Local Authority
Submissions on behalf of P
"The LAA notes that the present position has arisen due to the decision of P's advisers to pursue this matter within these wardship proceedings. It is possible that if the alternative routes had been chosen (for example a maladministration claim or a claim in separate proceedings) this issue may well not have arisen as the wardship proceedings had concluded prior to the events giving rise to the HRA claim in this case."
In marked contrast, in an email sent to P's solicitors on 21 July 2016 the LAA said:
"The statutory charge would attach to all of the work under the certificate and not just the proceedings relating to the breach."
In a second email sent later that day the LAA said:
"The relevant sections of the statutory charge manual are sections 5.6, 5.7 and 5.9. The Access to Justice Act and Legal Aid, Sentencing and Punishment of Offenders Act refer to the provision of legal services and the statutory charge is calculated by reference to the cost of funded services. Even if we had issued a fresh certificate, we would have calculated the statutory charge by taking the costs of both certificates."
"Human rights arguments based on the convention can, and should, be dealt with within the context of the pending care proceedings. They can, and should, be dealt with by the court which is dealing with the care proceedings. Where there are care proceedings on foot there is, in my judgment, no need for any separate, let alone free-standing, application. Section 7(1)(b) enables every court- including the FPC- to give effect to the parties' Convention rights."
"I note the detailed discussion of the statutory charge. The applicability and extent of the charge is to be determined at conclusion of any case but in principle the Agency's position is as noted by counsel that the statutory charge will extend to the whole of the costs incurred under this certificate."
"it does not appear to me that the level of damages falls so short of the costs that the private paying individual test is not met."
The only reason the costs on the certificate were so high was because it included the costs of the wardship proceedings. I am told and accept that there was a delay in P's solicitor submitting a final bill in those proceedings. If that bill had been resolved expeditiously, a new certificate would have been issued in respect of funding for an HRA claim rather than, as happened, extending the cover of the certificate originally issued in May 2015. On the LAA's case, however, the issue of a new certificate would not have made any material difference to its submissions on the applicability of the statutory charge.
"In order to meet Regulation 6, the Director must be satisfied that the case is an appropriate case to realise benefits for an identifiable class of individuals. You have not identified any specific individuals or group of individuals (such as a number of adjourned cases awaiting the decision in this case). Accordingly, there is at present no clearly identifiable class of individuals for whom this case would realise benefits and no clear indication of the number, who might potentially benefit. This is a damages claim, which is to be determined on its own, presently isolated, facts. For those reasons, I am not satisfied that this case is of significant wider public interest."
This decision appears to ignore the fact that there is no reported authority on the issue of the breach of a ward of court's human rights.
"The scope of the certificate does not cover an application for damages for breach of the HRA. The CIVAPP8 dated 30/5/16 was treated as a request to amend the scope and my letter of 9th June was formal notice of refusal to amend the scope."
(1) Where a claim is made –
(a) by or on behalf of a child or protected party; or
(b) against a child or protected party,
no settlement, compromise or payment (including any voluntary interim payment) and no acceptance of money paid into court shall be valid, so far as it relates to the claim by, on behalf of or against the child or protected party, without the approval of the court.
(2) Where –
(a) before proceedings in which a claim is made by or on behalf of, or against, a child or protected party (whether alone or with any other person) are begun, an agreement is reached for the settlement of the claim; and
(b) the sole purpose of proceedings is to obtain the approval of the court to a settlement or compromise of the claim,
the claim must –
(i) be made using the procedure set out in Part 8 (alternative procedure for claims); and
(ii) include a request to the court for approval of the settlement or compromise.
Where the claimant uses the Part 8 procedure the claim form must state –
(a) that this Part applies;
(i) the question which the claimant wants the court to decide; or
(ii) the remedy which the claimant is seeking and the legal basis for the claim to that remedy;
(c) if the claim is being made under an enactment, what that enactment is;
(d) if the claimant is claiming in a representative capacity, what that capacity is; and
(e) if the defendant is sued in a representative capacity, what that capacity is.
(Part 22 provides for the claim form to be verified by a statement of truth)
(Rule 7.5 provides for service of the claim form)
"(m) take any other step or make any other order for the purpose of managing the case and furthering the overriding objective, including hearing an Early Neutral Evaluation with the aim of helping the parties settle the case."
"1. The LAA made a determination to grant public funding for RA to issue a claim seeking a declaration that the local authority had acted in breach of an injunction regarding the disclosure of information by extending the legal aid certificate granted for the inherent jurisdiction proceedings (8 February 2016).
2. The LAA made a determination not to grant public funding for RA to issue a HRA claim seeking damages for the alleged breach of his Art 8 rights by the local authority (9 June 2016).
3. The LAA plainly drew a distinction between the two potential claims.
4. Accordingly, RA was not provided with 'civil legal services' to mount a claim for damages.
5. If the damages were not awarded within the wardship proceedings but in a freestanding HRA claim, not funded by the LAA, would it follow that the provisions of s.25 of LASPO and thus the statutory charge would not apply to the award of damages?
6. If not, why not?
7. No proceedings were issued by RA for a HRA claim for a declaration or for damages.
8. Instead a letter before action, in accordance with the CPR, was sent to the local authority stating that a formal claim would be issued if a settlement could not be negotiated.
9. A settlement was negotiated.
10. Neither RA's letter to the local authority nor the latter's response made any reference to the proceedings under the inherent jurisdiction, other than to assert the fact that RA was a ward of court.
11. The subject matter of the HRA claim was wholly unconnected to the subject matter of the previously made application for a declaration under the inherent jurisdiction.
12. In the premises, on what basis, if any, is it contended that the potential HRA claim for damages, or any freestanding claim which would have followed the letter before action if a settlement had not been achieved, was made within the proceedings under the inherent jurisdiction?
13. Is the court not entitled to conclude that the claim for damages, set out in the letter before action, and not the subject of a public funding certificate viz not the subject of the provision of 'civil legal services', is outwith the scope of s.25 LASPO and the statutory charge does not apply?
14. If not, why not?
15. Subject to the answers to the foregoing questions, is there any reason why the court could not permit RA to make a freestanding claim under the HRA for damages (or deem RA to have done so) and to dispense with compliance with the rules and formalities (eg service of a statement of case) and to make the agreed award of damages and order for costs against the local authority in those proceedings in order to ensure the former are concluded justly, fairly and equitably. If so, the question posed at paragraph 14 above applies mutatis mutandis."
(a) it was common ground between the parties at the hearing on 26 August 2016 that any damages recovered in relation to the breach of P's Article 8 rights (the 'HRA claim') would be damages recovered in the wardship proceedings;
(b) the creation of new proceedings avowedly for the purpose of avoiding the statutory charge would not be an appropriate use of the court's powers. It would be wrong to seek to bring about the disapplication of the statutory charge by changing the previously contemplated approach to the scope of this judgment or disapplying certain rules of civil procedure.
(c) The issues raised by the court about the application of the statutory charge cannot be resolved in a factual vacuum.
(d) Even if P's damages were awarded in freestanding proceedings which were not funded by the LAA, the statutory charge would still apply to those damages if they were recovered in "proceedings in connection with which the [civil legal] services were provided." The language of 'in connection with' is obviously very wide. I was referred to the case of Cassidy v. Stephenson  EWHC 1562 (QB) where Holman J. held that money recovered from the settlement of professional negligence proceedings brought as a result of a failed clinical negligence (which was funded) was not property recovered in a dispute "in connection with which" the legal services for the clinical negligence claims were provided.
(e) The propositions set out in paragraphs 7 to 10 of the email of 20 October 2016 are correct, save that the LAA is not privy to the full background to this case (eg the local authority's response to P's letter before action).
(f) The HRA claim cannot be said to be 'wholly unconnected' to the subject matter of the wardship proceedings. The LAA asserts that:"As the LAA understands the position, the Court considered P's circumstances and the extent to which information about him and his whereabouts should be disclosed in the inherent jurisdiction proceedings. The HRA Claim arose, as the LAA understands it, as a result of conduct by the LCC that was not consistent with the way in which that issue was resolved, with the Court's assistance, in these proceedings. It was therefore reliant on matters determined in RA's favour in the wardship proceedings, for which funding for civil legal services was provided.…Civil legal services were provided for the wardship proceedings, in which RA was made a ward of the Court, and restrictions were imposed on disclosure of information in relation to RA. It was the fact that LCC acted contrary to the resolved position that has given rise to the HRA Claim. The LAA funded the wardship proceedings, including for a declaration that there had been a breach of the injunction imposed by the Court. "
(g) It would be artificial to say than any recovery of damages was not made in the wardship proceedings.
(h) Even if the award of damages was made or approved outwith the wardship proceedings, the damages were still recovered in proceedings in connection with which "legal services were provided" (i.e. the wardship proceedings). The LAA relies on the assertion by P's counsel that the authorities state that HRA claims should be brought within wardship proceedings viz. Re L(Care Proceedings: Human Rights Claims)  2 FLR 160.
(i) The answer to the question posed in paragraph 15 of the email of 20 October 2016 is "yes" there are reasons why the court should not permit the issue of a freestanding HRA claim. Such a device would be inappropriate and would not result in the disapplication of the statutory charge because, as asserted above, the damages would be recovered in (unfunded) proceedings which were "in connection with" the (funded) wardship proceedings.
(a) that I made an injunctive order against the local authority;
(b) that the employee of the local authority breached the terms of that injunction;
(c) and that P's claim against the local authority was based on a breach of that injunction.
None of the foregoing assumptions are factually correct. The LAA's mistake does explain the funding decision of 8 February 2016, set out at paragraph 38 above, to permit P to bring a claim for a declaration for breach of an injunction.