BABIES, BUNDLES, HUMAN RIGHTS, PROPORTIONALITY, CONDUCT AND COSTS:ALL IN ONE JUDGMENT

February 17, 2017 · by · in Assessment of Costs, Bundles, Conduct, Costs, Damages, Proportionality

The judgment of Mr Justice Cobb in AZ -v- Kirklees Council [2017] EWFC 11 contains much of interest to the legal profession generally.  It shows the danger of failing to comply with court directions; make or respond to appropriate offers of settlement and to litigate without due regard to proportionality. Although the respondent local authority had made mistakes (which were admitted) it had attempted to remedy the problem by holding settlement meetings and make appropriate offers of settlement (and inviting offers of settlement from the applicants – which were not responded to).  This led to the local authority only being liable to pay costs for a limited period. It means, I suspect, that the applicants will receive very little (possibly nothing) by way of compensation.

“I am dismayed that the preparation of this case has been undertaken in a way which was not only contrary to my formal direction, but was wholly disproportionate to the issues. I deprecate the unwarranted expenditure.”

“I would regard it as unprincipled to increase the award of damages by a significant sum (which on the instant facts could be approximately seven-fold) to reflect the costs of the proceedings. Parliament has devised a legitimate mechanism for the recovery of the costs incurred from those who benefit from state-funded support to pursue their litigation, and however unfairly it may operate in an individual case, it must be respected;”

“The Claimants’ approach would require me to ignore or forgive any reckless, wasteful or profligate manufacture of costs in order to ensure that the Claimants receive their award; this cannot be right. In this case, as will be apparent from my comments below, the Claimants did not conscientiously attempt to settle their claims, whereas I am satisfied that the Local Authority did make genuine efforts to do so”

KEY POINTS

  • The fact that a legally aided party receiving damages under the Human Rights Act would effectively lose their damages under the statutory charge if they were not awarded costs did not mean that they were, as of right, entitled to their full costs against the defendant.
  • In the current case the applicants had ignored appropriate offers to settle and failed to comply with court directions that appropriate offers of settlement be made.
  • The applicants had also failed to engage properly in settlement meetings and respond appropriately to offers of settlement.
  • The applicants received their costs but only for defined, and limited, periods of time.

THE CASE

The local authority obtained a care order on a young baby. It was agreed that this was done without appropriate grounds and without following the appropriate procedure.   The local authority agreed that the threshold criteria had not been crossed and the proceedings were discharged.  The parents sought damages under the Human Rights Act.  The local authority conceded that it had breached the parents’ right to a fair trial by failing to inform them that a hearing was to take place and keeping the child out of their household. These concessions were made at an early stage and shared with the court on 14th July 2016.

BUNDLES AND COSTS

  1. I gave directions for trial in this case on 14 July 2016, three months after the launch of the HRA 1998 claims, and I timetabled the case for a short final hearing in October; at that stage the Local Authority was conceding two significant violations of the family’s rights, and were offering the Claimants modest compensation. I specifically invited the Claimants (and this was recorded on the face of my order) to take a critical view of their particulars of claim, to see what remained in issue. I encouraged them to consider carefully what outstanding relief they sought, and to provide to the Local Authority a detailed breakdown of their costs. I specifically encouraged the parties to negotiate realistically.
  2. The hearing scheduled for October 2016 had to be vacated, and I gave further directions for it to be relisted at the next available date, which was in early-February 2017. In mid-January 2017, lawyers for the parties met at a round table conference, and settled the substantive issues, leaving only the issue of the costs of both sets of proceedings for determination. The issue of costs has particular significance because of the impact of section 25 Legal Aid Sentencing and Punishment of Offenders Act 2012 (‘LASPO 2012’) on any award of damages.
  3. Notwithstanding the limited nature of the dispute, the ordinary requirements of the Family Procedure Rules 2010 and Civil Procedure Rules 1998, and my specific exhortation to the parties to take a realistic view of the case, bundles for the hearing exceeding in total 2,000 pages were filed (Rule 27.6 of the FPR 2010, and the Bundle Practice Direction (PD27A) seem to have been totally ignored notwithstanding the mandate that they “must be followed”), together with an authorities’ bundle containing over 30 authorities (even then omitting some of the key authorities). No reading list was provided, and only the sketchiest agreed note of the points of agreement. I was advised at the hearing on 8 February 2017 that the overall cost of the two associated claims was in excess of £120,000, all of which – one way or another – are to be paid from public funds, unless I make an order against the lawyers responsible. I am dismayed that the preparation of this case has been undertaken in a way which was not only contrary to my formal direction, but was wholly disproportionate to the issues. I deprecate the unwarranted expenditure.

DAMAGES

The judge noted that damages in this context were to compensate the claimants and not punish the defendant.  The breaches of the claimants’ ECHR rights were serious.  This was not an exceptional case that warranted a “without notice” application and the District Judge was misled, on three occasions, when she was told that the parents had been notified of the hearing. The infringements were the subject of a declaration of unlawfulness.

Damages were awarded on the basis of £3,750 per claimant.

THE COSTS ORDER

It is the judgment for costs, however, that is most telling. The order would determine, effectively, whether the parents received anything.

The local authority conceded that it was liable to pay:

“i) The Claimants’ costs of the CA 1989 proceedings from 13 November to 7 December 2015 (corresponding with the period in which it is agreed that the ECHR rights of the Claimants were infringed);

ii) The costs of the HRA 1998 applications from the date of issue (April 2016) to 14 July 2016 (the date of the Case Management hearing at which the Local Authority revealed its acceptance of declarations and made its open proposal to settle at £2,000 per Claimant).”

THE JUDGMENT ON COSTS
“What order for costs should be made?
    1. It is agreed that I should make an award of costs against the Local Authority in favour of the Claimants, in respect of the two periods described above (see [35] above). The issue is whether I should make any more significant award, as contended for by the Claimants and opposed by the Local Authority.
    2. Before turning to the legal arguments, it is instructive to review aspects of the litigation history as I now know it to be:
i) On 22 February 2016, the Local Authority sent a without prejudice letter asking the solicitors for both parents to indicate a ‘settlement amount’ in relation to any prospective HRA 1998 claim; the Local Authority invited the solicitors to attend a round table meeting in early March 2016 “to see if an early resolution can be brought without the need to issue proceedings … we are mindful of the statutory charge that would apply”;
ii) On 11 March, Ms. Irving QC (counsel for the Local Authority) contacted Ms. Anning (counsel for the mother) directly, encouraging her solicitors/client not to issue a HRA 1998 claim “so as to avoid the statutory charge applying to any settlement achieved”;
iii) A round table meeting was held on 17 March 2016 at the instigation of the Local Authority. The Local Authority had invited each party to bring a schedule of costs, but in the event only the solicitors for the father did so; it is said, without demur at this hearing, that at the round table meeting the Local Authority made an apology to the parents. In a ‘without prejudice’ letter which followed the meeting (23 March 2016) the Local Authority offered the sum of £2,500 per Claimant on the basis of no order as to costs (schedules still not having been produced on behalf of the mother or the child);
iv) On 13 July 2016, the Local Authority made a further without prejudice offer to settle the HRA 1998 claims for £2,000 together with the costs of the HRA claim; the letter contains an apology about the failure of the Local Authority representatives to notify the parents of the hearing on 13 November;
v) On 14 July 2016, at a hearing before me, this offer was repeated as an open offer; the Local Authority confirmed that it conceded declarations.
vi) On 15 July 2016, the offer was increased to £2,500 on an open basis, together with the costs of the HRA 1998 proceedings; the Local Authority proposed a further ’round table’ discussion (“the Local Authority feel that this was very much the steer given by [the Judge] this morning”);
vii) So far as I can tell, there was no response to that offer;
viii) An advocates meeting took place on 13 December 2016, but the agenda focused on arrangements for preparation for trial;
ix) On 6 January 2017, the Local Authority made further open proposals for settlement;
x) A further advocates meeting took place on 16 January 2017, at which the figure of £3750 was agreed;
xi) On the information available to me, the Claimants have not complied with the direction which I made (on 14 July and again on 5 October 2016) to make open proposals for settlement in a timely way, or indeed at all.
    1. I am advised that the total costs incurred in the CA 1989 and HRA 1998 proceedings by the parties are as follows:
1. Father’s costs £20,908.34
2. Mother’s costs £25,151.91
3. Children’s Guardian’s costs £32,885.89
  Total [Claimants’ costs] £78,946.14
4. Local Authority costs c.£40,000
  Grand Total c.£120,000
    1. Each of the Claimants has been granted a publicly funded certificate to seek both declarations and damages under the HRA 1998. They have pursued their claim for costs vigorously because unless I make a significant (indeed a total) costs award, the damages awarded in this litigation will be absorbed by the statutory charge under section 25 LASPO 2012; this statutory provision reads:

“25 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″.

    1. While there are exceptions to the application of the statutory charge (which are set out in regulation 5 of the Civil Legal Aid (Statutory Charge) Regulations 2013: “the Statutory Charge Regulations”) I am satisfied that these exceptions do not apply here. Regulation 7 of the Statutory Charge Regulations confirms that the statutory charge is, in these circumstances, applied in favour of the Lord Chancellor. Regulation 9 provides a discretion to the Lord Chancellor to waive all or part of the statutory charge:

“… if the following conditions are satisfied, (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.”

The discretion under regulation 9 can only be exercised in cases where the Director has funded the individual’s representation in accordance with that regulation. This does not apply here.
    1. Para 2.1 of the Legal Aid Agency’s statutory Charge Manual (April 2014) is relevant in its description of the statutory charge as being designed to place 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 the litigation does not, or is unable, to pay them). The statutory charge converts legal aid from a grant into a loan. The charge is designed to ensure that legally aided individuals contribute towards the cost of funding their cases so far as they are able;
    2. The statutory charge is calculated by reference to the costs incurred under the legal aid certificate by which the claim for declaration and/or damages is sought, and any certificates issued “in connection with” (section 25(1)(b)) the proceedings in which the recovery was made.
    3. Given the likely incidence of the statutory charge on any damages recovered in this case, the parties were encouraged to provide schedules of costs to the Local Authority as early as March 2016 so that an attempt could be made to resolve any costs dispute at an advocates meeting; the father’s legal team provided such a document, but those acting for the mother and for the child did not provide such documents in a timely or complete way. I directed costs schedules in July 2016, but there was a low level of compliance with this order (I am advised that the father’s lawyers provided a schedule but not the mother’s). Accordingly, costs have been incurred simply in identifying the scale of the likely financial implication of the argument.
    4. The Claimants raise three main arguments in their claim to recover full awards of costs:
i) That I should make the award under section 8(1) of the HRA 1998 because if I do not do so, the Claimants do not obtain “just satisfaction” in relation to the award of damages (section 8(3));
ii) That the conduct of the Local Authority was sufficiently unreasonable and/or reprehensible that it should sound in an adverse award of costs (reference Re T and Re S above);
iii) That although Article 13 ECHR is not incorporated into English law by the HRA 1998, I should nonetheless have regard to Article 13 ECHR when considering section 8(1) to ensure that the Claimants’ remedy is truly an “effective” one.
    1. The first argument: The Claimants’ primary argument is that I should use the discretion afforded to me in section 8(1) in order to ensure that Claimants receive “just satisfaction” under section 8(3). Section 8(1) provides:

“In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate”.

The Claimants accept that while section 8(1) offers the court a very wide discretion, in this case I “must” (they argue) exercise my discretion in the only way contended for, otherwise I will not be offering the Claimants “meaningful recompense” for the violations under section 8(3).
    1. Mr. Taylor adds that this is the only “just” way of affording proper relief to the Claimants, given that the care proceedings were not instigated by the Claimants (even though they accept that the Local Authority was not wrong to bring the case under Part IV), they had no choice but to participate in them, and have incurred a costs liability thereby.
    2. Mr. Taylor’s arguments echo the arguments of Mr Southey QC (counsel for the claimant) in the case of R (o.t.a. Faulkner) v Director of Legal Aid Casework [2016] EWHC 717 (Admin) (the same case which I referred to at [39](iii) above, when it returned to the Administrative Court on the costs issue; Mr. Southey’s argument was reproduced in the judgment thus (at [6]):

“It would be plainly unfair for Mr Faulkner to obtain no real remedy from these proceedings due to the operation of the ‘statutory charge‘ in circumstances in which (a) the court has recognised that he should receive £6,500 in damages as a result of breach of Article 5 (4) that led to a loss of conditional liberty and (b) a large number of other litigants will now be able to fully litigate their claims as a result of Mr Faulkner’s conduct of this appeal.”

    1. Mostyn J rejected that argument, and the associated arguments, and held as follows – [32] / [34] / [37]:

“If it was so obviously a violation of the human rights of Mr Faulkner for his award of damages to be encroached by the statutory charge then one would have thought that it would have been listed as an exemption from the statutory charge within Regulation 44 of the 2000 Regulations [i.e. predecessor regulations to those currently in force], but it is not. The fact that something is not mentioned there does not necessarily answer the question. But it does demonstrate to me that Parliament must have decided not to expand the list of exempt items beyond those which have been in existence for many years” [32]

“It is a feature of our costs regime, particularly so in civil proceedings but perhaps less so in family proceedings, that an award of costs is never in the full amount. The reason for this is to provide a deterrent to litigation, so it is said. That is why an assessment of costs on a standard basis rarely achieves more than 70 pence in the pound. The consequence of that is of course that even where there is an award of costs in favour of a successful party, the consequence of the assessment process may see a large part – perhaps even all – of a modest award of damages eliminated” [34]

“I do not accept that because [the damages] 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” [37].

    1. The Local Authority contends that it would be wrong in principle to treat section 8(1) as mandating the court to make a full award of costs just so that the Claimants actually benefit from any award of damages.
    2. I reject the Claimants’ arguments on this first basis for the following reasons:
i) I do not accept that the very wide discretion afforded to me under section 8(1) has to be condensed to one option only (i.e. to make a substantive award of costs) simply in order to achieve a ‘just’ outcome under section 8(3);
ii) If it had been the intention of Parliament that damages awarded under the HRA 1998 would be exempt from the statutory charge, it would have provided for this in the revised Statutory Charge Regulations (2013); it did not;
iii) Most awards of damages would be likely to be reduced to some extent by the incidence of assessment/taxation of the litigant’s own bill. While this may not apply so harshly to publicly funded litigants, it seems to me that the Claimants could not be insulated against the eventuality that the shortfall in any assessment would in itself lead to the obliteration of a modest award of damages;
iv) The award of non-pecuniary damages under section 8(3) is intended to reflect the Court’s disapproval of infringement of the claimants’ rights, in providing “just satisfaction” to the claimant; it is not intended to be, of itself, a costs award. I would regard it as unprincipled to increase the award of damages by a significant sum (which on the instant facts could be approximately seven-fold) to reflect the costs of the proceedings. Parliament has devised a legitimate mechanism for the recovery of the costs incurred from those who benefit from state-funded support to pursue their litigation, and however unfairly it may operate in an individual case, it must be respected;
v) In any evaluation of costs whether under the CPR 1998 or the FPR 2010, I am obliged to have regard to the parties’ litigation conduct, and whether costs are reasonably or not reasonably incurred. The Claimants’ approach would require me to ignore or forgive any reckless, wasteful or profligate manufacture of costs in order to ensure that the Claimants receive their award; this cannot be right. In this case, as will be apparent from my comments below, the Claimants did not conscientiously attempt to settle their claims, whereas I am satisfied that the Local Authority did make genuine efforts to do so, and this influenced my approach to the second argument below;
vi) The Practice Direction of the European Court of Human Rights (see [40] above) specifically refers to costs awards being upheld “only in so far as they are referable to the violations it has found”. If I am to cast an eye across to Strasbourg for guidance under section 8(4), then this is the answer I receive; this guidance would steer me towards an award of costs referable to the period 13.11.15-7.12.15 but not otherwise;
    • The second argument: By their second argument, the Claimants’ assert that if I apply the ordinary costs principles, the Claimants would be entitled to recovery of the majority, or indeed all, of their costs of the CA 1989 and HRA 1998 proceedings. Both Mr. Taylor and Ms Nelson acknowledged that this is very much the Claimants’ subordinate point, for they recognise that if I approach the case on ordinary costs principles there is a chance that I would not award the full amount of the costs, and if that were so, any unmet costs liability would be likely to wipe out the relatively modest damages award.
    • Section 51(1) of the Senior Courts Act 1981 applies to the costs arising here; it provides that (subject to rules of court – see below), costs shall be in the discretion of the court.
    • Although the case was not argued in this way, I am of the view that the costs incurred in the CA 1989 proceedings must be determined by reference to the FPR 1998, whereas the costs incurred in the HRA 1998 proceedings – even though brought on a C2 within the existing CA 1989 proceedings – must be decided under the CPR 1998. The tests under the FPR and CPR are in one material respect different. Specifically, and notably, under the CPR, Part 44.2(2)(a) applies so that 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”; this is subject to the proviso under (b) that “the court may make a different order”. This rule does not apply in family proceedings.
    • Most of the remaining provisions of CPR Part 44 apply in family proceedings; therefore, with reference to CPR 44.2(4) in deciding what order (if any) to make about costs, the court will have regard to all the circumstances, including, (a) the conduct of all the parties; (b) (though this may have limited application in family proceedings given the disapplication of CPR Part 44.2(2)(a): see Re T at [11]) whether a party has succeeded on part of its case, even if that party has not been wholly successful; and (c) any 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. As to relevant conduct, this includes: (a) conduct before, as well as during, the proceedings; (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 its case or a particular allegation or issue; and (d) whether a claimant who has succeeded in the claim, in whole or in part, exaggerated its claim. Part 44.2(6) specifically provides that the court may make any one of a range of orders including an order that a party must pay (a) a proportion of another party’s costs; (b) a stated amount in respect of another party’s costs; (c) costs from or until a certain date only; (d) …; (e) costs relating to particular steps taken in the proceedings; (f) costs relating only to a distinct part of the proceedings; and (g) interest on costs from or until a certain date, including a date before judgment.
    • The CA 1989 costs: In family proceedings, the relevant rule governing the award of costs is rule 28.1 of the Family Procedure Rules 2010 (‘FPR 2010’) which provides a wide discretion, viz:

“The court may at any time make such order as to costs as it thinks just”.

    1. As indicated above, Rule 28.2 of the FPR 2010 imports the majority of the CPR 1998 to costs in family proceedings, though it specifically disapplies Rule 44.2(2). The general discretion in rule 28.1 of the FPR 2010 is shaped by the provisions of CPR 44.2(4) & (5) (again see above).
    2. The principles which apply when the court exercises its costs discretion in family proceedings under the CA 1989 as between parties has been reviewed in a number of recent cases, from which I draw the essential principles as follows:
i) It is relatively rare to make an order for costs in children cases: London Borough of Sutton v Davis (Costs)(No.2) [1994] 2 FLR 569 – per Wilson J (as he then was):

“Where the debate surrounds the future of a child, the proceedings are partly inquisitorial and the aspiration is that in their outcome the child is the winner and indeed the only winner. The court does not wish the spectre of an order for costs to discourage those with a proper interest in the child from participating in the debate. Nor does it wish to reduce the chance of their co-operation around the future life of the child by casting one as the successful party entitled to his costs and another as the unsuccessful party obliged to pay them. The proposition applies in its fullest form to proceedings between parents and other relations; but it also applies to proceedings to which a local authority are a party. Thus, even when a local authority’s application for a care order is dismissed, it is unusual to order them to pay the costs of the other parties. But the proposition is not applied where, for example, the conduct of a party has been reprehensible or the party’s stance has been beyond the band of what is reasonable” (emphasis by underlining added).

ii) Local Authorities have a duty to investigate allegations of child harm, and should be protected from orders on costs if on investigation the allegations prove to be without foundation: see Re T (above) at [42]:

“The Children Act 1989 imposes duties on the local authority in respect of the care of children. If the local authority receives information that a child has been subjected to or is likely to be subjected to serious harm it has a duty to investigate the report and, where there are reasonable grounds for believing that it may be well founded, to instigate care proceedings. In this respect the role of a local authority has much in common with the role of a prosecuting authority in criminal proceedings. It is for the court, and not the local authority, to decide whether the allegations are well founded. It is a serious misfortune to be the subject of unjustified allegations in relation to misconduct to a child, but where it is reasonable that these should be investigated by a court, justice does not demand that the local authority responsible for placing the allegations before the court should ultimately be responsible for the legal costs of the person against whom the allegations are made“. (emphasis by underlining added).

iii) Every party has their part to play in assisting the Court to reach the right conclusion in the interests of the child: see Baroness Hale in Re S at [20]/[21]:

“… there are no adult winners and losers – the only winner should be the child. …

Furthermore, it can generally be taken for granted that each of the persons appearing before the court has a role to play in helping the court to achieve the best outcome for the child.”

iv) There is a public policy element to this approach: see Cazalet J in Re M (Local Authority’s Costs) [1995] 1 FLR 533:

“As a matter of public policy it seems to me that where there is the exercise of [a] nicely balanced judgment to be made by a local authority carrying out its statutory duties, the local authority should not feel that it is liable to be condemned in costs if, despite acting within the band of reasonableness (to adopt the words of Wilson J), it may form a different view to that which a court may ultimately adopt.” (emphasis added)

v) Where a local authority has caused costs to be incurred by acting in a way which is unreasonable or reprehensible, justice may well require that the local authority pay the costs in question: see London Borough of Sutton v Davis (Costs)(No.2) (above), Re T (above) at [44], and Re L (Costs of Children Proceedings) [2014] EWCA Civ 1437 ([38]-[41]); examples of such cases include: Re R (Care: Disclosure: Nature of Proceedings) [2002] 1 FLR 755; Re X (Emergency Protection Orders) [2006] EWHC 510 (Fam), [2006] 2 FLR 701; Coventry City Council v X, Y and Z (Care Proceedings: Costs) [2011] 1 FLR 1045;

“the general practice of not awarding costs against a party, including a local authority, in the absence of reprehensible behaviour or an unreasonable stance, is one that accords with the ends of justice and which should not be subject to an exception in the case of split hearings” [44]

vi) There is no fixed or defined category of case within which costs could or should be awarded. Baroness Hale in Re S expressed the view at [31] that:

“I do not understand that Lord Phillips, giving the judgment of the court in Re T, was necessarily intending to rule out the possibility that there might be other circumstances in which an award of costs in care proceedings might be appropriate and just.”

vii) If the family proceedings had been essentially adversarial in nature (i.e. appeal against refusal of day nursery registration), costs may well follow the event: see again Wilson J in London Borough of Sutton v Davis (Costs)(No.2):

“The proceedings were adversarial and the local authority lost the argument. Such were circumstances for application of the principle that costs should follow the event.”

viii) If “real hardship” would be caused to a party in achieving an outcome in the best interests of the child, that may provide a proper basis for a costs order – per Baroness Hale in Re S (above) at [33]:

“The object of the exercise is to achieve the best outcome for the child. If the best outcome for the child is to be brought up by her own family, there may be cases where real hardship would be caused if the family had to bear their own costs of achieving that outcome. In other words, the welfare of the child would be put at risk if the family had to bear its own costs. In those circumstances, just as it may be appropriate to order a richer parent who has behaved reasonably in the litigation to pay the costs of the poorer parent with whom the child is to live, it may also be appropriate to order the local authority to pay the costs of the parent with whom the child is to live, if otherwise the child’s welfare would be put at risk. (It may be that this is one of the reasons why parents are automatically entitled to public funding in care cases.)” (emphasis by underlining added).

    1. On the facts of this case, the Claimants have succeeded in their HRA 1998 claim, and ordinarily therefore they could look to the “unsuccessful” party (Local Authority) to pay their costs under Part 44.2(2)(a); however, I consider that the Claimants’ litigation conduct is such that they have forfeited this entitlement. In particular:
i) They failed to respond constructively to the Local Authority’s efforts to achieve a negotiated settlement; from an early stage (i.e. February 2016: see [45](i) above), through until July and beyond, the Local Authority was making appropriate overtures to sort out this dispute, but the Claimants were ostensibly unreceptive;
ii) The Claimants were invited from 22 February 2016 to indicate a ‘settlement amount’ in relation to any prospective HRA 1998 claim, but they did not apparently (i.e. from the correspondence – including that marked ‘without prejudice’ – which I have now seen) do so;
iii) The mother and Children’s Guardian did not respond positively to the request to provide costs schedules at an early stage or an order to the same effect, and none of the Claimants complied with my direction for the provision of open offers of settlement;
iv) Further ‘without prejudice’ offers were made on the days either side of the Case Management hearing on 14 July, without any meaningful response. On the 14 July itself, at court, Ms. Irving QC made an open offer. On 15 July 2016, the offer was increased to £2,500 on an open basis, together with the HRA 1998 costs; the Local Authority proposed a further ’round table’ discussion but this fell on deaf ears;
v) So far as I can tell, there was no response to the offer made on 15 July 2016;
vi) On the information available to me, the Claimants have not complied with the direction which I made (on 5 October 2016) to make open proposals for settlement in a timely way, or at all.
On ordinary costs principles, I am of the view that the Claimants should be entitled to recovery of their costs of the HRA 1998 proceedings from the grant of certificates up to and including 14 July, but no further.
    1. In relation to the costs of the CA 1989 proceedings, the Claimants have failed to demonstrate in my judgment that the Local Authority behaved “reprehensibly” or “unreasonably” otherwise than in the circumstances in which it launched the proceedings and conducted the hearing on 13 November. This had ramifications (i.e. the placement of CZ away from the parents’ care) until 7 December. In my judgment, applying ordinary costs principles, the Claimants would be entitled to the costs of the CA 1989 proceedings for the limited period from 13 November to 7 December 2015.
    2. These conclusions correspond with the European Court’s Practice Direction (see [40] above) which directs the Court to uphold claims for costs and expenses only in so far as they are referable to the violations it has found.
    3. The third argument: Mr. Taylor’s third argument is a variation of the first, namely that the Claimants will be denied an ‘effective’ remedy unless I make a comprehensive award of costs against the Local Authority. He maintains that rule 28.1 FPR 2010 and section 8(1) should be read in the light of the provisions of Article 13 of the ECHR, which of course is one of the ECHR rights which is not incorporated into English law by the 1998 Act. Article 13 provides:

“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity” (emphasis by underlining added).

    1. Mr. Taylor draws my attention (with nodding reference only to Pepper v Hart [1993] AC 593) to the debate in Parliament on the Human Rights Bill in November 1997, and the comment of the then Lord Chancellor that the courts may “wish to” have regard to Article 13 when considering the “very ample” provisions of section 8(1). Mr. Taylor says that for a remedy to be ‘effective’ it must be adequate and accessible. He contends that the Claimants are denied an ‘effective’ award unless they recover their costs.
    2. First, I do not consider that Pepper v Hart has been appropriately deployed here. Section 8(1) and section 8(3) are not ambiguous or obscure; while the adult Claimants may feel that the outcome is not fair, it is not absurd. In any event, I am wholly satisfied that the Claimants have been able to access a court effectively, and have a remedy in the form of a declaration and an award of damages. The fact that the damages award is vulnerable to recoupment by operation of a statutory charge for costs arises because Parliament, in devising a scheme for assisting litigants to bring legal claims, has also devised a method of recoupment; the significant benefits of public funding to enable litigants to prosecute legitimate claims do not come without some trade-off. It seems to me that I should not interpret the provisions of the HRA 1998 (particularly by reference to a Convention right which has not found its way into English law), in such a way as to create what would swiftly become a dual-carriageway by-pass around the provisions of LASPO 2012.
    3. Two further points were raised in argument which it may be sensible to raise here only to dispose of them.
    4. Reference was made at the hearing to P v A Local Authority [2016] EWHC 2779 (Fam), a case in which Keehan J found a way of facilitating the grant of the award of damages to the Claimant in such a way that it was unaffected by the LAA’s statutory charge. On the facts of that case, the applications under the HRA 1998 and under the wardship were quite separate and unconnected; he said this:

“P’s claim is and was always based upon his Art. 8 Convention right to respect for his private and family life. The claim had nothing to do with the declaratory relief granted to P in the wardship proceedings” [71] (emphasis added).

On the facts, P v A Local Authority is materially different from the situation which obtains here.
    1. Secondly, Mr. Taylor further submitted that I could award an aggregate damages award of £11,250 (£3750 x 3) to the child, and order the Local Authority to pay all of the costs of the Children’s Guardian; in that way, (i) this would reduce the financial outlay for the Local Authority than the alternative route contended for by the Claimants, and (ii) at least one of the parties would actually benefit from a damages award. Ms. Irving QC indicated that if the Court approved it, the Local Authority would not contest this approach. The LAA was, sensibly, consulted about this proposal, and rejected it for the contrivance which it undoubtedly is. I could not in any circumstances sanction this approach. I have awarded damages to each of the three Claimants; the figure awarded is what I regard as “necessary” to give “just satisfaction” to each of them. The proposal outlined undermines the principles on which I have resolved the claims.
Conclusions and decisions
    1. I shall make the declarations proposed and conceded, set out in [33] above.
    2. I shall award each of the three Claimants £3,750 by way of damages, to be paid by the Local Authority, under section 8(3) HRA 1998. It is, I acknowledge, regrettable that because of the costs order I propose to make, the Claimants are unlikely to receive these sums.
    3. I shall make an order that the Local Authority makes a contribution to the publicly funded costs of the Claimants, limited to the following periods:
a) 13.11.15-7.12.15 (all Claimants: CA 1989 proceedings);
b) From the date on which the LAA granted extensions to the Claimants’ existing certificates (issued for the CA 1989 proceedings) for them to pursue HRA 1998 claims to 14.7.16, excluding the costs incurred by those who attended on behalf of the mother and the child at the meeting arranged by the Local Authority on 17 March 2016 (save as provided for herein, all Claimants: HRA 1998 proceedings).
  1. That is my judgment.”

 

 

Tags: , , ,