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Human Rights claims and statutory charge – an answer? Sort of

In the words of Erik B and Rakim

 

It’s been a long time, I shouldn’ta left you, without a strong rhyme to step to

 

But now, to paraphrase the one-hit wonder gangster rapper from Leicester,  “Return of the Pack – oh my god, Return of the Pack, here I am, Return of the Pack, once again, Return of the Pack, Pump up the world”

 

Which is a more heavy rap-related intro than intended, but basically, now I’m back, to show you…

 

P v a Local Authority 2016

High Court y’all.  Keehan J in da House.

http://www.bailii.org/ew/cases/EWHC/Fam/2016/2779.html

This one is actually a Keehan J shout out to the old skool, if by old skool, you mean (and I do),  the return of a case from March 2016

Child in care wanting parents to have no information or involvement

 

That was the case where the young person did not want his adoptive parents to know anything about the process of gender reassignment, and the LA went to Court to ascertain whether that was in conflict with their duties under the Children Act 1989 to consult with parents when they are looking after a child.

Unfortunately, this happened

 

Background

 

  • In September 2015 P moved to a local authority unit for semi-independent living. Although there were concerns about his mental well being and general welfare, P settled in to this accommodation. He was and is a vulnerable young person with a history of repeated episodes of self harm, taking overdoses and extremely poor mental health.
  • On 11 January 2016 an employee of the local authority disclosed personal information about P, including his forename and transgender status, to third parties who are friends of P’s adoptive parents. P was originally told that the address of the unit where he was living had also been disclosed: this later appears not to have been the case.
  • The impact of this wrongful disclosure on P was immediate and dramatic. He felt unsafe at the unit and left. He first stayed with his girlfriend and then at a number of residential units provided by the local authority. P’s mental health was very severely compromised: he made a number of suicide attempts and there were several episodes of self harm.
  • In more recent months P’s mental health has stabilised. I was very pleased that he was well enough to attend the last court hearing on 26 August 2016.
  • Although the local authority promptly told P of the disclosure of his personal information, I regret that it was slow in (a) giving P a full account of what had happened and (b) giving P a full and unreserved apology. In February the then Director of Children and Family Services wrote a letter of apology to P and offered to meet with him to answer any questions he may have had. P did not take up the offer of a meeting.
  • The member of staff who made the wrongful disclosure was suspended by the local authority and a formal investigation was undertaken pursuant to the council’s disciplinary policy. I do not know the outcome of that process.
  • Regrettably, and notwithstanding that P is a ward of this court, the local authority did not bring this breach of P’s privacy to the attention of this court. The matter was raised with the court by P’s lawyers.
  • The local authority, very sensible and rightly, decided to concede it had, by the inexcusable actions of one of its employees, breached P’s Article 8 rights to respect for his family and private life. They agreed to pay P damages in the sum of £4750. I am satisfied that in light of the very considerable distress suffered by P and the immediate adverse impact on his mental health, this appears to be an appropriate level of damages to be awarded to P.

 

That all seems straightforward. The LA messed up, and they agreed a sum of compensation to pay to P and P was content with that sum, and the Judge felt it was the right amount.

So why is this even a thing?

Well, it is because the Legal Aid Agency (having by the way refused to give P funding to make a claim for damages) wanted to take that £4750 and use it to repay the legal aid that P had had in the original wardship proceedings. This is called the Statutory Charge, and it comes up most often in divorce cases about money. The point there is that if you get legal aid (or ‘free’ legal representation paid by the taxpayer and you win money out of the case, you have to pay the legal aid back out of that money. ) That makes sense with divorce. It doesn’t make a lot of sense here.

It was P’s legal rights that were breached, and the £4,750 is compensation for that breach. Obviously he should get the money.

 

But no, the statutory charge bites on the compensation and P would get nothing.

That’s because of our dear old friend LASPO, the Statute that keeps on giving (if by giving you mean stealing pennies from the eyes of corpses)

 

  • Its current statutory basis is set out in s. 25 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (‘LASPO’) which provides:

 

“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.

 

And the killer words her are “in connection with”  – basically the Legal Aid Agency position is that the statutory charge bites (and thus they can take the compensation and take all of the legal aid costs spent on other stuff and P just gets anything left over) if there’s a connection between the cases at all.

There’s one exception in the LASPO Act (none of which apply to compensation from Human Rights claims) and the Lord Chancellor has power to exempt the statutory charge in certain cases

 

 

  • The Lord Chancellor has authority to waive the statutory charge, in whole or in part, where she considers it equitable to do so and two conditions are met.

 

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.

 

  • The phrase ‘significant wider public interest’ is defined as being a case where the Director of the LAA is satisfied that the case is an appropriate case to realise real benefits to the public at large, other than those which normally flow from cases of the type in question, and benefits to an identifiable class of individuals, other than the individual to whom civil legal services may be provided or members of that individual’s family: see regulation 6 of the Civil Legal Aid (Merits Criteria) Regulation 2013 (the ‘LA(MC)R 2013’).
  • The LAA asserts that the two conditions set out in regulation 9 of the CLA(SC)R 2013 must be satisfied at the time the application for funding is made and the Director makes the determination that the application qualifies for funding. The purpose of the waiver is to allow legal aid to be granted for a single test case without disadvantaging the applicant should he or she fail to secure damages and/or all of their costs.

 

 

The Lord Chancellor and the Legal Aid Agency were both represented in these proceedings and were clear that Reg 9 had not been sought at the time the application for funding was made (of course it hadn’t, because the breach hadn’t happened at that point)  and so it couldn’t now be applied.

Their very reasonable solution was that P would get his damages, provided that his solicitors, silk and junior counsel agreed to waive all of their fees from the wardship case (i.e having represented P in a very complex and legally difficult case and got everything that he wanted and advanced the law in a way that will help others in similar circumstances, they should not get paid for any of it)

 

 

  • In taking a broad and pragmatic approach leading counsel for the local authority submits that the adverse consequence of the statutory charge, that P will receive not a penny in damages, is unfair and makes no sense. I have a very considerable degree of sympathy with those sentiments.
  • In this context I deprecate the stance taken by the LAA that the issue of P receiving any of the awarded HRA damages would be alleviated if his leading counsel, junior counsel and solicitor simply waived their professional fees for acting in this matter.

 

 

The Judge mooted the idea that if there was a break between the two cases (this is my solution so I’m interested in it)  i.e

  1. The solicitors and counsel deal with the wardship or care proceedings on legal aid

2. Separately and without charging for it, they write to the LA about human rights breach and ask for compensation

3. LA settles the HRA claim (and possibly pays the costs of step 2 into the bargain)

 

Then why is the money recovered as a result of step 2 ‘in connection with’ step 1?  And why should the LAA get their money back from step 1 if step 2 is nothing to do with it, and no legal aid money was spent in getting step 2 achieved?

I think this is a damn good point (immodestly, because I’ve been saying it for ages). The LAA unsurprisingly disagree

 

 

  • The principal supplementary submissions of the LAA may be distilled into the following 10 points:

 

(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 [2009] 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) [2003] 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.

 

 

The Judge decided otherwise and ruled that in this case steps 1 and 2 were not ‘connected with’ each other and the statutory charge did not arise on the compensation payable to P. Hooray!

 

 

 

  • It is appropriate for me to deal with each of those points in turn. First, the court is neither bound nor fettered in its determination of the legal issues or the factual matrix of a case by the submission of counsel. In any event counsel were afforded the opportunity to agree or disagree with the alternative analysis proposed by the court and to make submissions. P and the local authority have decided to agree with my propositions and questions. The LAA have had a full opportunity to respond and I can discern no procedural or substantive unfairness in the course I have adopted.
  • Second, to characterise the alternative analysis the court has suggested is ‘avowedly for the purpose of avoiding the statutory charge’ is quite wrong. Rather my objective is to secure, if at all possible, by any legitimate and lawful route P’s receipt of the damages he maybe awarded for the breach of his Article 8 Rights by an organ of the state.
  • Third the factual matrix of this case should be well known to all parties including the LAA. The same is comprehensively set out in the parties’ written submissions and in a detailed chronology prepared on behalf of P. I do not accept the court is considering the legal issues in this case in a factual vacuum.
  • Fourth, with reference to paragraph 64(d) above, I accept the phrase “in connection with which the [civil legal] services were provided” can be given a very wide interpretation. I was not referred to any authority to support a submission that I must give it a very wide interpretation.
  • Fifth, with reference to paragraph 64(e) above, I do not understand the submission that the “LAA is not privy to the full background to this case.” For the purposes of this judgment I have not taken account of nor have I been furnished with material not available to all counsel, save perhaps for one matter which I refer to in the next paragraph.
  • Sixth, with reference to paragraphs 64(f) and (g) above, the LAA appears to have proceeded and proceeds on the basis of a fundamental misunderstanding of the order I made in August 2015: see paragraph 46 above. I did not make an injunction or other order prohibiting the local authority from disclosing personal or private details about P to other persons, save against the local authority disclosing information to P’s adoptive parents: see paragraph 8 above. I made a declaratory order that the local authority was relieved of its statutory duty to give information about P to or to consult with P’s adoptive parents about P or his welfare. The LAA has proceeded and proceeds on the following assumptions:

 

(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.

 

  • 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. This court was not notified of that alleged breach (now admitted) by an employee of the local authority which it should have been because P is a ward of this court and because of the adverse consequences of the wrongful disclosure on P. Furthermore the wrongful disclosure, insofar as it is relevant, was made to third parties and not to P’s adoptive parents. The local authority asserts that the third parties did not, in fact, pass on the disclosed information to P’s adoptive parents.
  • Seventh, with reference to paragraphs 64(h) and (i) above, in light of the correct factual matrix set out above I am not satisfied that the (unfunded) HRA claim in which damages are sought could be said to be “recovered in proceedings in connection with which legal services were provided” (i.e. the funded wardship proceedings). I go further, I am wholly satisfied that the damages resulting from the HRA claim are not “recovered in proceedings in connection with which legal services were provided”. There is no legal or factual connection between the wardship proceedings and P’s HRA claim.
  • The mere fact that P’s counsel in submission referred to the case of Re L(Care Proceedings: Human Rights Claims) [2003] 2 FLR 160 which advises that HRA claims may or should be made in existing proceedings, does not require this court to conclude that P must or may only make a HRA claim in ongoing wardship proceedings. No claim form was issued. The HRA claim and the quantum of damages were settled before a claim was issued. As referred to in paragraphs 58 and 59 above, rr. 21.10 and 8 of the CPR set out the appropriate procedure when a settlement is reached concerning a child or young person prior to the issue of proceedings.
  • I can discern no legal impediment or other reason why I should not permit P by his solicitor to issue a claim form as required by r. 8.2 of the CPR and upon that basis, in due course, proceed to approve the agreed award of damages to P in respect of his HRA claim in those proceedings. The approval of damages can be submitted by email and be dealt on the papers without the need for a hearing. I am confident that the local authority would agree to pay the costs of that process incurred by P’s legal team.

 

Conclusions

 

  • I am bound to find that the Lord Chancellor, by the director of the LAA, has no discretion or power to waive the statutory charge, if applicable, in this case. The preconditions set out in regulation 9 of the CLA(SC)R 2013 must be satisfied at the time the determination of funding is made and a decision to waive the statutory charge must be made at the same time. That did not happen in this case and thus the preconditions are not satisfied.
  • I do not understand why the CLA(SC)R 2013 regulations placed that limitation on the time when a decision whether to waive the statutory charge must be made. I am not aware of any public interest or policy reasons for the same. It is regrettable that the discretion to waive the statutory charge is so fettered.
  • The manner in which the LAA has made determinations on public funding in these proceedings is extremely unfortunate. In some aspects the decisions are plainly wrong and/or unreasonable and in others the reasoning of the LAA is difficult to understand, if not incomprehensible.
  • In my view it would be extremely regrettable if P were to be denied the benefit of the damages awarded to him as a result of the considerable emotional distress and harm to his mental well being he has suffered as a result of the wrongful conduct of an organ of the state.
  • In light of the fact, however, that the LAA refused to fund a HRA claim for damages it appears me that the damages to be awarded to P under the Part 8 procedure were recovered in a claim that did not have the benefit of a public funding certificate. Further I am wholly satisfied that any damages awarded to P in Part 8 proceedings were not recovered “in proceedings in connection with which [civil legal] services were provided.” Accordingly, however erroneous or muddled the LAA’s decision making was on this issue, in my view, for the reasons I have given above the statutory charge is not and cannot be applicable to P’s award of damages.

 

 

Is this the end of it? Not really. Whilst the Judge here paints a route-map for others to follow, there are two major differences from other HRA cases notably the s20 damages cases.

 

  1. The HRA breach happened AFTER the Court hearing and not really in connection with the Court hearing at all. P’s rights would have been breached by what the rogue member of staff did, whether or not there had been a Court hearing. (The Court hearing made it sharper and more vivid and allowed P to easily tap into legal advice from his legal team whom he already knew, but the breach was a breach regardless. It was  a breach of his article 8 rights, NOT as the LAA mistakenly thought a breach of a Court injunction)
  2. The LAA had been asked to fund a damages claim and had refused. That is a material factor in the Judge being able to rule that there was no connection between the two cases.

 

(On the plus side for children and parents, this case probably makes it more likely that the LAA will STOP refusing to fund such damages cases, since if they do, they leave the door open to not being able to recover their original costs out of any winnings, but that in turn means that they will argue that this case doesn’t have broader application)

 

I suspect this is an issue that only the Court of Appeal or Parliament can resolve. It simply can’t be right that where a child or parent has their human rights breached by the State and compensation is paid that they will not get a penny of it. Equally it can’t be right that where the HRA claim is accepted and settled swiftly, that the LA get hit with costs of care proceedings which would be massively more than the legal costs of dealing with the HRA claim itself (and that is a collision course with Supreme Court decisions in Re S and Re T about where costs orders can be made in care proceedings)

Not for the first or last time, the answer is that LASPO is badly drafted and poorly constructed and unfair to real people, and it needs to be reworked.

 

Like Redbridge under troubled water (a Local Authority takes a kicking case)

 

I know that my readership tends to like a case where a Local Authority gets a good going over from the Judge – some of my readers don’t like social workers (and some with good cause), some are lawyers who represent parents and get exasperated by LA failings (some with good cause) and some are Local Authority lawyers and social workers who need to know what pitfalls might be awaiting them in Court – and some people just frankly enjoy a bit of “thank goodness that wasn’t me”.

If you are one of my readers who works for the London Borough of Redbridge, good morning, and thanks for your support, but you might want to skip this particular blog. It will spoil your coffee and possibly your day.

 

http://www.bailii.org/ew/cases/EWHC/Fam/2016/2627.html

 

London Borough of Redbridge v A B and E (Failure to comply with directions) 2016

 

This was a High Court case heard by MacDonald J.  (By way of context, the LA could have had many far worse High Court Judges for this case, there are some where I would have feared for their survival)

 

Also by way of context, this was going to be the re-hearing of a final hearing, because at the first hearing the LA had filed their placement order late/not at all, and the Recorder had messed it up. At the Court of Appeal hearing, Redbridge had been sternly admonished for their failure to comply with directions or to seek court leave where they were going out of time. So there had already been cock-ups in this case which the LA had been told off for by the Court of Appeal – specifically about late filing of evidence and very very specifically about filing an application for a Placement Order very late.

 

With that context in mind, at an early directions hearing in the re-hearing, MacDonald J made this direction

 

  1. The matter having been remitted to the Family Division, on 28 July 2016 I made a series of directions designed to case manage this matter to a further and third final hearing on 17 October 2016, including:
  1. i) Directions for the filing of (i) the minutes of the LAC Reviews held since March 2016 by 11 August 2016 and (ii) a witness statement from any Police officer who attended the alleged incident on 27 December 2015 by 4pm on 22 August 2016;
  2. ii) A direction that the local authority file and serve (i) a final care plan, (ii) a final witness statement, (iii) a Scott Schedule of facts the court is invited to find and (iv) Schedule of Issues by 4pm on 12 September 2016;

iii) A direction that the local authority issues any placement application by 4pm on 12 September 2016 together with directions consequent thereon;

  1. iv) A direction that the mother file and serve her final evidence and response to the Scott Schedule by 4pm on 26 September 2016;
  2. v) A direction that the Children’s Guardian file and serve her final analysis and recommendations by 4pm on 10 October 2016;
  3. vi) A direction listing the matter for a further Case Management Hearing on 1 September 2016.
  1. On the face of my order of 28 July 2016 I required a recital to be included to the effect that, in light of the history of this matter, it was vital that the local authority adhered to the letter of the regulations and procedural rules that govern its conduct as between the date of that order and the final hearing. A further recital recorded that “All parties are reminded that should any issue arise that may affect the timetabling of this case then they are under a duty to inform the court of the issue and, if necessary, make an application to bring the matter back to court.”
  1. Pursuant to my order of 28 July 2016, the matter again came before me on 1 September 2016 for a further Case Management Hearing. On that date it was apparent that the local authority had failed to comply with parts of the order of 28 July 2016. In particular, the local authority had failed to comply with a number of the case management directions, including a failure to file and serve the minutes of any LAC Reviews that had occurred since March 2016 and a witness statement from any Police officer who attended the alleged incident on 27 December 2015. A further feature of the local authority’s conduct brought to the Court’s attention on 1 September 2016 was the alleged persistent failure by the local authority solicitor with conduct of the case to reply to correspondence from the solicitors instructed by the mother.

 

Despite this litany of non-compliance, no application had been made by the local authority to amend the directions in respect of the above matters prior to the expiry of the time for complying with those directions. Beyond the failures of the local authority articulated in the foregoing paragraph, the trial bundle is in what can only be described as a state of disarray, with key documents missing.

 

There was a directions hearing where the Judge describes himself as ‘expressing himself in excoriating terms’ about the failings, the case came BACK to Court for an explanation and the LA counsel had received no instructions in advance of that hearing….

 

Even today, and after I had expressed myself in what, I have no doubt, can fairly be described as excoriating terms at the compliance hearing last Wednesday, Mr Pavlou attended court this morning without having been able to secure instructions from the local authority as to when the matter would be ready for an adjourned final hearing. In particular, he had been unable even to achieve instructions as to the timetable for a further decision by the ADM. This was notwithstanding the fact that on 1 September 2016 I had directed the local authority to file and serve by 4pm on 14 October 2016 a further decision of the ADM to be taken in light of additional evidence to be filed ahead of the final hearing and not available when the initial decision was made by the ADM

 

Mr Pavlou deserves a very good bottle of Scotch from this Local Authority, it must have been a brief that kept him up at night.

 

In relation to the LA solicitor’s actions, read this and wince.  (I have anonymised the solicitor’s name, the Judge did not)

 

Finally, with respect to the allegation that the local authority solicitor with conduct of this matter has failed to reply to correspondence from the solicitors representing the mother, at the compliance hearing last Wednesday Ms E instructed Mr Pavlou (in a manner audible to the court) that she had responded to each and every email sent and Mr Pavlou advised the court accordingly. However, the signed statement that I have this morning received from Ms E concedes that she has replied to only a little more than 50% of the correspondence sent to the local authority by the mother’s solicitor.

 

(Being fair to Ms E, both of those things are actually possible – if someone sends 2 chasing emails to you saying the same thing and you answer it, you have answered all the correspondence but you have also only responded to half of the individual emails. But still, ouch)

 

Compounding all of this, when the ADM decision WAS produced, it was apparent that the ADM had taken it upon themselves to make decisions about the truth of allegations when those allegations had not been the subject of findings or even sought as findings…

 

Further, and within this context, with respect to the proposed application for a placement order, Ms Maclachlan had little difficulty at the compliance hearing demonstrating that the initial decision of the Agency Decision Maker was flawed to the extent that any application issued on the basis of the ADM decision would readily be open to attack and the decision of the ADM will have to be re-taken. In short, the ADM had taken it upon herself to make findings about the cause and provenance of the aforementioned injuries notwithstanding that the same have not been the subject of forensic investigation or findings within these proceedings. The late service of the ADM’s decision had prevented this fundamental issue being identified earlier and at a time it was still capable of remedy without impacting on the final hearing.

 

{This aspect is a little tricky – as the Court of Appeal have almost banned fact finding hearings, there are many cases where the ADM is charged with making a decision about whether adoption is the plan for the child when there is no Court finding yet about threshold or allegations. The ADM has to take a view on whether they personally are satisfied about threshold, because obviously if they DON’T think threshold is crossed,  how could they possibly decide that adoption is the plan? They must, however, avoid in their analysis and decision making specific comments as to threshold. The best way to think of it, in my mind, is that the ADM is deciding on what the plan for the child should be IF the Court is satisfied that the child has suffered significant harm. Because if the Court don’t find threshold, adoption won’t be the plan anyway. My reading is that in this case, the ADM and the social worker had gone further than just making that assumption that threshold was capable of being proven and in to dealing with specific allegations which were in dispute}

 

It won’t surprise anyone to learn that a costs order hearing is pending, with Redbridge having to show cause why they should NOT pay the costs.

 

Additionally, however,

 

 

  1. Ms Tara Vindis on behalf of the E submitted that this case is one that requires to now be put into ‘special measures‘. That is an apt analogy. Within this context, it is my intention that the local authority will provide a written report to me each Friday morning at 10.00am by way of email to my Clerk confirming the continued compliance with the timetable the court intends to impose. In the event of default on the part of the local authority, the matter will be brought back into the list for a compliance hearing. It is my expectation that the local authority will comply with its heavy duty to obey the directions of the court.

 

 

The Court also made it clear that the parties are forbidden to agree their own timetable and simply notify the Court of it, they actively need permission of the Court to change the timetable. (this approach works if the Court in question are very responsive to communications, not always the case everywhere in the country.  This is not me having a go at Court staff, who would have found it next to impossible to cope with a 40% increase in demand over the last two years even at full staffing, and we know that as a result of austerity, Court staffing levels were cut to the bone way before this surge in demand.  However, you can’t get an application in to adjust the timetable unless you’ve got very speedy communication at every step of the chain. If LA’s actually did what the President suggested and applied for extensions when they thought they were going to be half an hour late in filing a document, they would BREAK THE COURT system. And as LA’s need the Court system NOT TO BE BROKEN – you know, so that the Court can do their job of listing emergency applications, most of them have not followed the ‘apply if half an hour late’ principle)

 

  1. The courts have repeatedly reminded local authorities and those representing them of the following cardinal principles applicable to complying with case management directions made by the court in public law cases:
  2. i) Case management orders are to be obeyed, to be complied with on time and to the letter and any party finding themselves unable to comply must apply for an extension of time before the time for compliance has expired (see Re W (Children) [2015] 1 FLR 1092).
  3. ii) Agreements between the parties to amend the timetable set by the Family Court are forbidden by FPR 2010, r 4.5(3). The parties are categorically not permitted to amend the timetable fixed by the court without the court’s prior approval and every party is under a duty to inform the court of non-compliance with the timetable set (see Re W (Children) [2015] 1 FLR 1092). Within this context, writing to the court to inform the court that the timetable has been altered does not amount to seeking the court’s permission. A specific request for prior approval must be made.

iii) The burden of other work is not an excuse for non-compliance with the directions of the court. Whatever the difficulties presented by resource issues, the court will not tolerate a failure to comply timeously with orders (see Bexley LBC v, W and D [2014] EWHC 2187).

  1. iv) Casual non-compliance is not an option precisely because further harm will likely be caused to the child (see Re H (A Child)(Analysis of Realistic Options and SGOs) [2015] EWCA Civ 406).
  2. v) Failure by a local authority to comply with court orders causing unnecessary and harmful delay may result in a breach of Arts 6 and 8 and in an award of damages being made against a local authority (see Northamptonshire County Council v AS, KS and DS [2015] EWHC 199(Fam)).

Wasted costs orders against everyone!

I don’t think I’ve ever seen anything quite like this. It raises some massive points of financial implications for solicitors, particularly when agreeing to take on a case involving medical or police disclosure.  It places on them a financial risk that might very well not be worth taking, given the narrow margins on which businesses are currently operating. The Judge did not, it seems to me, take proper account of the public policy implications of this decision.

A public law case was listed for a 2 day finding of fact hearing. The Local Authority had been ordered to obtain police and medical disclosure. It appeared that some things which clearly by close reading of other documents were known to exist within the police possession had not found their way into police disclosure. When this came to light, the hearing had to be adjourned.

The Court then embarked on an exercise to see who was responsible and considered the making of costs orders.

Re L (Case Management : Wasted Costs) 2016

http://www.bailii.org/ew/cases/EWFC/OJ/2016/B8.html

 

What makes it quite remarkable is that in most wasted costs cases what happens is that one side is assessed to be responsible for the mix-up or failure, and the other parties get their costs paid by them. Here, the Judge determined that whilst the Local Authority was chiefly to blame, all of the parties had to bear some of the blame.

 

Non-compliance with case management directions – who is at fault?

 

  • In this case,[2015] 1 FLR 1092 case management orders were made promptly (on day 14) for the disclosure of medical records and police records. The medical records were disclosed promptly save for the photographs. The failure to disclose the medical photographs was not identified by any party until 20th January 2016.
  • The police responded promptly to the disclosure order but failed to disclose the audio recordings of the parents’ police interviews. The first approach to the police for ‘further disclosure’ was made by the local authority on 14th October. The first time the lack of this material was raised by any other party was in an e-mail from the mother’s solicitor to the local authority on 2nd November.
  • Who is responsible for these failings? Is the failure to disclose the medical photographs the responsibility of the hospital or of the local authority for not going back to the hospital to ask where the photographs were, or of the other parties for not raising this issue either with the local authority or with the court? Is the failure to disclose the audio recordings of the parents’ police interviews the responsibility of Leicestershire Police (who were ordered by the court to disclose ‘witness statements, interviews, photographs and medical reports in respect of the injuries’), or of the local authority (to whom the police were ordered to make disclosure and upon whom was laid the obligation of disclosing the police material to the other parties), or of the other parties for their delay in raising this issue either with the local authority or with the court?
  • Leicestershire police were ordered to make disclosure to the local authority. The local authority was ordered to disclose to the other parties the material received from the police. It was also ordered to obtain and disclose medical records. Is the scope of the local authority’s duty limited to forwarding on to the other parties the material received from the police and the hospital? In my judgment, it is not so limited. The local authority is not providing a postal service. It is under a duty not only to disclose what it receives but also,

 

(a) to consider with care the material received from the police and hospital;

(b) to satisfy itself that the disclosure complies with the terms of the relevant case management direction; if it does not comply then,

(c) to identify any documents or categories of document that appear to have been omitted;

(d) to contact the police/hospital promptly seeking immediate disclosure of the missing documents; and if disclosure of the missing documents is not made promptly then,

(e) to inform the court and seek urgent directions; and

(f) to keep the other parties informed.

 

  • Whilst the primary duty for obtaining and disclosing police and medical records rests with the local authority, it is clear from the rules to which I have referred that the other parties also have a responsibility. They, too, are under a duty to assist the court in the process of active case management and to inform the court of any non-compliance. With respect to police and medical disclosure there is a duty,

 

(a) to consider with care the material disclosed by the local authority;

(b) to satisfy itself that the disclosure complies with the terms of any case management direction relating to that disclosure;

(c) to identify any documents or categories of document that appear to have been omitted;

(d) to inform the local authority promptly with respect to any gaps in the disclosure; and, if the missing documents are not provided promptly,

(e) to inform the court and seek urgent directions.

 

  • In my judgment it is clear from the rules and authorities to which I have referred that these duties exist. They are a necessary part of the process of enabling and assisting the court to comply with its duties to further the overriding objective and to complete care cases within 26 weeks.
  • In the circumstances of this case I am satisfied that the responsibility for the failure identified rests primarily with the local authority. However, I am equally satisfied that the solicitors for the parents and the guardian also bear some responsibility.

 

Well, that’s all lovely in an ideal world, but do solicitors have the time to inspect each and every document with a fine-toothed comb, particularly in a case where counsel are instructed? They certainly don’t get paid for such a task.

So what happens then? Well, one sensible approach would be for the LA to pay some of the costs but not all of them, given that there were failings on the part of the other parties. That’s not what happened here.

 

The Court was actually considering punishing the solicitors involved by disallowing a share of their costs. The Legal Aid Agency were strongly suggesting that this was not a power open to the Court unless they were carrying out their function of assessing the public funding certificates by way of taxation (which would come at the end of the case)

 

Disallowing costs payable to a legally aided solicitor

 

  • Navigating one’s way around the labyrinthine complexities of the current legal aid scheme is a significant challenge. For present purposes it is necessary to have regard to the Legal Aid Agency’s Standard Civil Contract 2013 specification: General Rules (section 1-6) (July 2015 amendment), to the Standard Civil Contract 2013 specification: Family category specific rules (section 7) (July 2015 amendment), to the Civil Legal Aid (Remuneration) Regulations 2013 and to the Civil Legal Aid (Remuneration) (Amendment) (No2) Regulations 2014.
  • The solicitors for the legally aided parties contend that disallowing part of a standard fee payable to a legally aided solicitor pursuant to the provisions of s.51(6) is not simply inappropriate but that it is not possible. The basis of that submission is that the standard fee for legal representation is a fixed fee payable irrespective of the amount of work undertaken (subject to the right to ‘escape’ from the standard fee to which I referred earlier). It follows, therefore, as a matter both of logic and of law, that so far as concerns the costs of any solicitor entitled only to the standard fee there cannot have been any ‘wasted costs’. In this case, even if a solicitor entitled only to the standard fee undertook work on 20th, 21st and 22nd January which would not have been necessary had the failure of police disclosure been identified at the time it arose, that solicitor will receive no extra payment for that work but will simply receive the fixed fee to which he or she would in any event have been entitled. A letter to the court from the LAA supports that argument,
  • The position would appear to be different so far as concerns the costs of a solicitor who ‘escapes’ the standard fee. As I noted earlier, that solicitor is entitled to be paid for the work undertaken on an hourly rate basis (the hourly rate being that prescribed in the Civil Legal Aid (Remuneration) Regulations 2013 as amended). In those circumstances it is clear that the argument set out in the previous paragraph does not apply. Even if the court does not have the power to make a wasted costs order against a solicitor entitled only to the standard fee (a proposition about which I am doubtful) there would seem to be no reason why the court could not make a wasted costs order against a solicitor who ‘escapes’ the standard fee.
  • However, the LAA raises a second issue and that relates to its power to act on an order made by the court under s.51(6) disallowing all or part of a legally aided solicitor’s entitlement to remuneration. In its letter to the court, the LAA asserts that,

 

‘The court could only disallow a solicitor’s costs under their contract with the LAA where the court is performing a detailed assessment pursuant to that contract (see paragraphs 6.37 – 6.38 of the Standard Contract Specification…) However, you could make observations to help the assessing authority (whether that is the LAA or the Court) in its assessment.

‘Where legally aided work falls under one of the Standard Fee Schemes, the LAA usually would have no choice but to pay the standard fees, unless the claim is not true, accurate and reasonable. The nature of the standard fee scheme is that in some circumstances a legal aid provider may receive a relatively high payment for not necessarily doing a large amount of work, whilst in the circumstances of a different case, the same standard fee may be considered to be relatively low. However, if you do make any observations on the amount of costs claimed and suggest that some costs should be disallowed, the possibilities, within the fixed fee scheme would be as follows:

1. Claims can ‘escape’ the fixed fee where, if paid at hourly rates the solicitors would be paid more (i.e. for Legal Representation, where costs on an Hourly Rate basis would exceed twice the Standard Fee, the solicitors would be paid at hourly rates). If in the circumstances of this case the solicitors have escaped the fixed fee and are to be paid at hourly rates, any disallowance (or recommended disallowance) of costs on assessment could reduce the amount payable to the solicitors;

2. The costs of the case can be disallowed in full, which would lead to a nil payment to the provider irrespective of the fixed fee scheme;

3. If the solicitors have breached some term of the contract, such as the requirement to carry out all contract work in a timely manner and with all skill and care, and as a result caused the LAA a loss (for example if a further hearing were required because of the solicitor’s default which has led the LAA to make further payments), then the LAA could set off the loss it has been caused against any payment due to the solicitors (i.e. the fixed fee they would be due to receive)’

 

  • Paragraphs 6.37 and 6.38 of the Standard Contact Specification provide that:

 

Court assessment

6.37 Except where:

(a) it is or may be necessary for the court to carry out a detailed assessment of costs payable to the Client by another party to the proceedings; or

(b) having regard to interests of the Client and public funds, the weight or complexity of the case and all the other circumstances, we consider it appropriate to direct that the costs be subject to detailed assessment,

your Claim for payment for Licensed Work will be assessed by us.

6.38 A direction under Paragraph 6.37(b) may relate to an individual case or to any class of case, identified by the level of costs to be assessed or otherwise. In cases where costs are to be subject to assessment by the court, detailed assessment proceedings must be commenced within the time specified in the Civil Procedure Rules.

 

  • If the LAA’s submissions are correct then that would seem to represent a significant narrowing of the scope of s.51(6) in a case involving a legally aided solicitor. It would mean that although under s.51(6) the court could order a legally aided party’s solicitor to pay another party’s wasted costs, the court would have no power to disallow any wasted costs incurred by that same solicitor.
  • I note that neither the Standard Civil Contract 2013 specification: General Rules (section 1-6) (July 2015 amendment), or the Standard Civil Contract 2013 specification: Family category specific rules (section 7) (July 2015 amendment) refer to the court’s powers under s.51(6). With all due respect to the LAA, it seems to me that the key to understanding paragraphs 6.37 and 6.38 of the Standard Contract Specification is to be found in the heading: ‘Court assessment’. Those paragraphs deal with the question ‘who should assess my costs’. Section 51(6) addresses a completely different issue. Section 51(6) provides a power to penalise a solicitor as a result of whose conduct ‘wasted costs’ are incurred (whether another party’s costs or his/her own costs).
  • It is my preliminary view that the court’s power to make a wasted costs order is not confined in the way suggested by the legally aided solicitors and by the LAA. However, I am satisfied that in this case it is possible to dispose of the wasted costs issue without determining those points. That said, in my judgment the LAA’s arguments do raise important issues which need to be authoritatively addressed.

 

This disallowing of costs to a publicly funded solicitor can easily move a case from barely profitable to making a loss for the firm. Not to mention the absolute headache with the Legal Aid Agency in recovering the money. Does anyone actually benefit from this at all? Haven’t we just spent a huge amount of money arguing about this issue? Not to mention any costs of a potential appeal, given the wider implications for solicitors across the country?

In a concluding paragraph, the Judge bemoans the increase in demand by additional care proceedings on the Court service and that no additional resources have been provided, whilst ignoring that the very same thing applies to all of the other parties to the case.

 

Conclusion

 

  • Statistics show that in recent months, nationally there has been a significant increase in the number of new care proceedings issued. Cafcass statistics show that over the ten months from 1st April 2015 to 31st January 2016 the number of new care proceedings issued was up by almost 13% on the previous year. During that same period The Family Court in Leicester experienced a 39% increase in new care cases – three times the national average. That increase in workload has not been matched by any increase in court resources. I make that point simply to underline the fact that court time is a precious resource. The court can ill-afford contested hearings being vacated because of the failure of one or more of the parties to comply adequately with the obligations placed upon them by the rules and by case management orders made by the court.
  • In this case I am satisfied that the solicitors for all four parties are responsible for the errors identified. All four were responsible for the wasting of court time and for the wasting of costs. I have identified wasted advocacy costs incurred by the legally aided parties amounting to £5000. I shall make a wasted costs order against the local authority requiring it to pay 50% of that sum, £2,500. I have also identified that the local authority has incurred wasted advocacy costs of £1950. I shall make wasted costs orders against the solicitors for the legally aided parties jointly to pay 50% of those costs (£975 i.e. £325 per solicitor).

 

Of course there were failings here, and it would have been markedly better had the Local Authority involved raised with the Court and the parties their concerns that the police disclosure was incomplete and missing important documents. Was this, however, a proportionate response to the difficulty? I am sure that all lawyers have experience of arriving at Court for a final hearing with time and money spent in preparing a case only to find that the case is double-listed or insufficient time is available – the parties in those cases – of which there were very very many, did not attempt to demand that the Court Service pay their wasted costs.

 

I note that the Judge here refers to the Norgrove report on Family Justice.  Perhaps it is useful to bear in mind this passage of the report.

 

Our recommendations are intended to restore the respective responsibilities of courts and local authorities. But to change the law does not tackle the root cause
of the difficulties. This stems we believe from a deep rooted distrust of local authorities and unbalanced criticism of public care, as discussed in paragraphs
3.21 – 3.26 above. This in turn fuels dissatisfaction on the part of local authorities with the courts, further damaging relationships.
3.46.The result is that the relationship between local authorities and courts can verge on the dysfunctional. For the system to work better it is not acceptable for each
group to sit on the sidelines and criticise the other. A failure in one part of the system must be seen to be a failure of all. Courts and local authorities, and other
professionals, should work together to tackle this at a national and local level.
The report was published in 2011.  When one reads the judgments over the last few years, 2011 starts to look like a golden era of co-operation and trust between the different stakeholders in Family Justice. I would gladly roll the clock back to 2011 in that regard.

[I would also deprecate the habit in this judgment of the use of (sic) for what are clearly utterly minor typographical errors in emails sent by the Local Authority – emails are documents which are typed in haste, particularly when trying urgently and desperately to resolve a pressing problem and (sic) is an uncalled for dig. I also note that the Judge did not apply the same (sic) standard to emails received from counsel, which had similar minor typographical errors.  I also note that this case was listed for a fact finding hearing despite the allegations being substantially short of the Court of Appeal guidance as to when a separate fact finding hearing should be heard…]

 

 

 

More money than cents

 

In this case, which involved an application by a mother to take the children to America to live, the Court of Appeal noted that the parents had, to date, spent £850,000 on Court litigation about their children.

This family appeal strongly demonstrates the damage that is caused when separated parents fail to take the opportunity to resolve their differences. Instead of finding its own solutions, this family, which has every other advantage, has engaged in two years of litigation that has caused great unhappiness, not least to two teenage children. The dispute has been about money and about child arrangements. Aside from the emotional cost and general waste of life, the financial cost has been staggering. The parents have so far expended £850,000 on legal costs and even now their overall litigation is not at an end. The scale of the costs is particularly incongruous when the parents each claim that there was not enough money to go around before the costs were spent. The proceedings are yet another example of why the Family Court repeatedly attempts to divert parties into mediated solutions that allow them to keep control of their own affairs. The court is there to resolve disagreements that cannot be resolved in any other way but, as has been said before, it is not a third parent.

 

By way of comparison, to have educated both of the children at Eton would have still left enough money to buy each of them an Aston Martin DB9.  I know lawyers are awesome, but I do think that probably a private school education and a DB9 would have done the children more good.   [The money could even have bought a small cupboard in central London as a first step on the property ladder…]

 

To put it into more context, £850,000 is the figure that the Press have been aghast that Liam Gallagher and Nicole Appleton have spent on their divorce lawyers – and those are two considerably wealthy individuals arguing about a considerable amount of money.

 

Re C (Older Children:Relocation) 2015

http://www.bailii.org/ew/cases/EWCA/Civ/2015/1298.html

 

The Court of Appeal also made some observations about the sliding and diminishing scale of the Court’s willingness to make orders about older children and ability to make orders that are effective.

 

A further and central element of the situation is that the children of this family are in fact young persons, being boys now aged 17 and 15. The case illustrates the particular caution that should be felt by any court seeking to make arrangements for children of this age. In the first place, it is likely to be inappropriate and even futile to make orders that conflict with the wishes of an older child. As was memorably said in Hewer v Bryant [1970] 1 QB 357 in a passage approved in Gillick v West Norfolk and Wisbech Area Health Authority [1986] 1 AC 112: “… the legal right of a parent to the custody of a child ends at the eighteenth birthday and even up till then, it is a dwindling right which the courts will hesitate to enforce against the wishes of the child, the older he is. It starts with a right of control and ends with little more than advice.” Nowadays, the ‘no order’ principle goes even further and requires the court to justify making any order at all, regardless of whether it is in support of the child’s wishes or in opposition to them. With an older child, the court’s grasp cannot exceed its reach, any more than a parent’s can, and attempts to regulate something that is beyond effective regulation can only create a forum for disagreement and distract the family from solving its own problems.

 

As the Court had made orders about the two children previously, technically mother did need leave of the Court to remove the children from the jurisdiction. The Court of Appeal ruled that the older child ought no longer, at 17 to be subject to Court restrictions and orders, and thus there was no need for leave of the Court. If he wanted to move to America with mother, then he could move, and if he did not, he would not have to. In relation to the 15 year old, the mother’s appeal was refused, so he could not go to America with mother, but that all orders in relation to him would end when he was 16, so he could go then if he wished to.

 

  1. Our conclusion is that the general approach taken by this very experienced recorder was one that he was fully entitled to take. To the extent that the appeal is allowed in E’s case and, to a limited extent, in J’s, it is on a basis that was not argued below, namely in consequence of the ‘no order’ principle the court should not have been making or continuing orders about young persons over 16 other than in exceptional circumstances.
  2. As stated at the end of the hearing, the outcome allows the parents and E to discuss the arrangements for his future between them. It is a clear indication that this court does not consider it appropriate for it to contribute to that discussion in any way at all.
  3. In J’s case, the outcome of the appeal is that the mother may not take him to New York. That does not prevent the parents from discussing and reaching agreement about the future arrangements for his residence and schooling, but if they cannot do so the arrangements under the existing order will continue and the terms of s.13 Children Act 1989 will remain in effect.
  4. However, we shall direct that the existing order will cease to have effect in J’s case when he reaches the age of 16. This is a variation of the arrangements that was not the subject of appeal but it is in conformity with our decision in E’s case.

 

 

The proceedings have taken a heavy toll on the children, who emerge with great credit. It must be hard for them to live amidst such conflict. The parents must now bring an end to a situation where their children are being asked to make up for their own inability to communicate effectively. The hearing of this appeal took place on the second last day of the school Christmas term, meaning that the boys did not until that moment know whether or not they would be saying goodbye to their school and their friends. They deserve better, and it is to be hoped that the end of these proceedings and the imminent resolution of the financial case will bring some respite, or even something more enduring.

 

 

The Children Act 1989 s9, as amended in 2014, sets out the Court’s powers to make section 8 orders past the age of 16

 

“9 Restrictions on making section 8 orders

(6) No court shall make a section 8 order which is to have effect for a period which will end after the child has reached the age of sixteen unless it is satisfied that the circumstances of the case are exceptional.

(6A) Subsection (6) does not apply to a child arrangements order to which subsection (6B) applies.

(6B) This subsection applies to a child arrangements order if the arrangements regulated by the order relate only to either or both of the following –

(a) with whom the child concerned is to live, and

(b) when the child is to live with any person.

(7) No court shall make any section 8 order, other than one varying or discharging such an order, with respect to a child who has reached the age of sixteen unless it is satisfied that the circumstances of the case are exceptional.”

The Court of Appeal had therefore to look at whether a relocation application was a specific issue order, or whether it related to a variation of residence  – they conclude that the Court ought properly when faced with an application about a child who was over 16 to consider that all orders should fall away (and thus mum would not NEED leave to remove from the jurisdiction)

  1. There is, regrettably, some lack of clarity about how relocation applications are to be classified. The debate, which is of long standing, is whether such an application is to be made under s.13 itself or by way of an application for a specific issue order under s.8. There are in my view good arguments for the latter: see the observations of Hale J in re M (above) at 340-341 and the article by Dr Robert George in Family Law Journal [2008] Vol 38 p.1121. However, this court has on at least three occasions proceeded on the basis that an application to relax the s.13 prohibition where there is an existing order is not an application under s.8 for a specific issue order: Re B (Change of Surname) [1996] 1 FLR 791; Payne v Payne [2001] 1 FLR 1052; Re F (A Child)(International Relocation Cases) [2015] EWCA Civ 882.
  2. It may seem anomalous that the statutory framework for a relocation application will differ depending upon whether there is a s.8 order in effect. In the above appeal cases, judges been enjoined to apply the welfare checklist even when it is not strictly engaged. In the present case, the difference is potentially sharper because the bar on making s.8 orders for children over 16 will only apply if the application is for a specific issue order: it does not apply if the application is considered to be made under s.13.
  3. How did the recorder deal with this issue? He accepted Ms Murray’s submission that he could make an order in relation to E because he could “regard any new living arrangements as being a variation of the existing shared residence order”. In doing so, he rejected M’s submission that he would be making a new order which, he accepted, would be barred by s.9(7). He found that the circumstances were not exceptional and it is common ground that he was right to do so. Without being prescriptive, I would interpret the main intention behind the proviso as being to allow an order to be made where a child has qualities that require additional protection, not to override the views of a mature child of 16 or 17.
  4. I have set out the arguments on this issue because they formed part of the recorder’s decision and the argument in this court. However, drawing matters together, it seems to me that whether a relocation application is regarded as being made under s.13 or s.8, the general intention of the Act (prominently seen in s.9) is to prevent the imposition of inappropriate requirements on older children.
  5. But I would go beyond that and find that the issue in this case is not to be determined by reference to s.9, but instead by reference to the wider principle expressed in s.1(5). In my view it is not better for the court to make an order in relation to E than to make no order. In fact, it would be positively better for the court to make no order about him. The simple fact is that E is too old to be directed by the court in a matter of this kind. Although the existing child arrangements order, buttressed by the effect of s.13 is not addressed to him, it directly affects him as the subject of the proceedings. This is not to ignore the common interests of this strong pair of brothers, but to recognise the proper limits on the court’s exercise of its powers in the case of a mature and intelligent older child who is now 17 years of age.

A witness talking over the lunch adjournment

I don’t often write about ancillary relief cases, but this one

 

JE (Husband) v ZK (wife) 2015

http://www.bailii.org/ew/cases/EWFC/OJ/2015/B87.html

threw up an issue that we all trot out to witnesses on a daily basis and when I asked on Twitter about six months ago where you can find that actual rule written down, nobody was entirely sure.

When a witness is part way through their evidence, and the case comes to a break (either at the end of the day, or lunch), the witness is generally warned by the Judge “You should not discuss the case with any one, and you are still under Oath”

The still under Oath part must be right, since when the witness resumes, they do not have to take the Oath again.  Therefore, during that break in the evidence, the witness is still bound to tell the truth, the whole truth and nothing but the truth – technically, if the witness goes for a haircut and the hairdresser does that thing with a mirror where they show you the back of your own head, rather than the stock response of   :- nod “mmm, that’s great thanks” the witness ought to answer “I have no idea why you show me that, what is the point? Whatever you’ve done, it is too late to fix, and I don’t care what the back of my head looks like”

 

[Even worse, if you are still under Oath, and your new partner asks you “does my bum look big in this?”, you could be in for a world of trouble. Best to not talk to anyone at all]

The not discussing the case with anyone makes perfect common sense (which is unusual in law).  If you could talk about your evidence with someone whilst you were in the middle of giving it, they could be influencing what you say, or giving you tips as to how to do it better.  And if someone else in the case saw the witness talking to their lawyer or another party, they might well SUSPECT that this is what was happening, even if it wasn’t. So best not to do it.

The hard bit is finding where that rule is actually written down, and what the Judge is supposed to do about it.

 

Here, what happened was that the original Judge heard evidence that the husband, having given part of his evidence and then needing to come back over lunch, had been seen in the Court waiting room talking to his colleague NC (his colleague was also someone whom the husband had been renting accommodation from AND someone who was said to owe the husband £15,000, so it COULD be said that the conversation might have a bearing on financial matters)

The husband’s evidence was that he had asked NC about “Ironman” competitions and personal trainers, and nobody disputed that.

 

The District Judge had found that the father was in contempt, and said in his judgment

Is it relevant? I can hear being said! Well, yes, for this is the same man who remortgaged 141 Kings Road after having said through his solicitors that there were no grounds for saying that he was going to. Like that, his behaviour at the lunchtime was unacceptable’.

Now, importantly, this was a hearing where a financial order was made, concluding the financial arrangements. The District Judge was now in a pickle, because whilst saying that it was ‘relevant’  it clearly wasn’t conduct that could legitimately be taken into account for the purposes of the Matrimonial Causes Act.

The District Judge then made a clarifying note

In his clarifying note at B26 the District Judge said that he did not take the husband’s conduct in speaking to NC into account in his conclusion and that he ‘would have thought that was clear. It just had to be mentioned, it as so blatant’.

 

Part of the husband’s appeal was that the judgment was thus blurred about whether or not this issue had weighed on the judicial determination of finances.

 

Dealing with the appeal, His Honour Judge Wildblood QC said this:-

  1. Quite plainly, that conversation between the husband and NC had absolutely nothing to do with the correct outcome of the financial remedy applications. It was a complete irrelevance, as far as the solution to the case was concerned. It certainly was not conduct that the court could possibly take into account when deciding upon the correct outcome. It had no relevance under any of the other factors under section 25 of The Matrimonial Causes Act 1973 and cannot be salvaged by reference to ‘all the circumstances of the case’ in s 25(1) of The Matrimonial Causes Act 1973.
  2. I accept that the District Judge does not then tie in the finding that this issue was ‘relevant’ when later explaining his conclusions. At B15 he says that he is departing from quality bearing in mind the wife’s need for her to provide a home for the children. Further, at B6 he says: ‘there are two aspects of the husband’s affairs which I take into account within all the circumstances of the case and which make me satisfied that my decision is appropriate. First the dissipation of assets referred to in paragraph 4 above and, secondly, the opaque business relationship with Mr Clarke’. Although there are obvious difficulties with that past passage to which I must return, he does not say that the ‘contempt’ finding is relevant in that later passage.
  3. The difficulty is this. If a judge says that something is relevant in the sort of strong terms used by the District Judge he must mean what he says. A judgment has to be capable of being understood on its face and a party to the proceedings must be able to understand the methodology of the court. It seems highly likely that, at the time that he wrote the judgment, the District Judge did regard this issue as relevant to how the capital should be divided (because he said so himself at B15). I do not accept Ms Allen’s clever submission that he meant ‘Is it relevant for me to mention it?’ at B15; that interpretation does not fit in with the context of what he was saying. He associated it with the husband’s conduct in re-mortgaging the property at Kings Rd [B15] and, later took that remortgage into account at B16. The reality is that the District Judge was making findings of conduct and saying that he treated them as relevant. He was incorrect to do so and a clear statement in a judgment that something is treated as relevant cannot be cured by a clarifying note.

 

 

[This Judge was more sanguine about the incident itself than the DJ had been

 

iii) The finding of contempt was inappropriate and unnecessary to the exercise that the District Judge had to perform. The husband was wrong to speak to NC over lunch having been warned not to do so but the conduct complained of (speaking about personal trainers and an Ironman competition) had nothing whatsoever to do with the outcome of the case but was described by the District Judge as ‘relevant’ to it. I know the Gloucester waiting area well having appeared there as an advocate myself in my 27 years at the bar, and can well imagine what occurred (and what did occur happened in the full view of the lawyers and was not remotely surreptitious).   ]

 

His Honour Judge Wildblood QC, with some reluctance, had to allow the appeal and discharge the financial order that had been made. I say with reluctance, because the Judge had earlier expressed substantial dismay that two people who had once been in love had spent a “Scandalous” amount of money in ligitation

 

  1. The District Judge said that the costs were scandalous. I agree. The total that has been spent in legal costs now is as follows:
    Wife’s costs before the District Judge 62,171
    Husband’s costs before the District Judge 28,799
    Husband’s appellate costs 12,849.26
    Wife’s appellate costs (at least) 20,000
    Total 123,819.26
  2. This is not a complex case. It involves a home, a working husband who is effectively a sole trader, a few modest assets, considerable liabilities, two children and a depressed wife. For money to have been wasted on such disproportionate costs is truly scandalous. Further, these parties have two children – what sort of example do they set their children when they spend so much of the money that should be directed to their children’s welfare on blinkered and self validating litigation?
  3. I am particularly critical of the level of this wife’s costs. They are double those of the husband and nothing that I have seen gets anywhere near justifying that. I have myself witnessed two wholly unnecessary applications being brought by the wife: a) for transcripts of all of the evidence before the District Judge to be ordered at the husband’s expense for the purposes of the appeal, an application which I did not allow and b) a full legal services application, when the correct application should have been for a partial release on a stay which, when I suggested it, was agreed on the evening before a hearing of the legal services application brought by the wife and only after considerable cost expenditure (W’s claimed costs £3875.70). Further, I consider that money has been wasted on obtaining expert evidence about the suggested value of the husband’s business when that capital value was abandoned (rightly) at trial and was never going to have the sort of relevance originally suggested. That expenditure on costs took place against the backcloth of strong complaint made by the husband before the District Judge about the wife’s costs expenditure (see A1 – no trial bundle, no open offer, no updating disclosure and a late production of her s 25 statement that had been prepared three months before the hearing started but was filed seven days before the hearing started).
  4. The above remarks must be before any judge assessing costs in this case and I ask that there is very careful scrutiny of the costs that are being claimed by the wife’s legal team. It cannot be right that this level of cost expenditure occurs in a case of such modest assets. The costs claimed are about 36% of the total assets held, according to the District Judge by the parties. The burden that this now creates upon the parties, especially the wife must be immense.
  5. The District Judge found that the total pot of capital in the case was £345,686

 

Towards the end of the judgment, HH J Wildblood QC set down a marker for future litigation conduct

86….I wish to make it plain that, if I find any more money is being wasted by this wife on costs, I will impose costs sanctions – if she, or the husband, pursues any more pointless or unmeritorious issues I will reflect that in a costs order (and I say that without prejudice to any arguments and applications that may be advanced about existing cost expenditure). It seems to me at least highly possible that past dissipation of assets (which in a big money case can be of obvious importance) may be regarded as totally overshadowed now with the exigencies of the current very limited financial circumstances of these parties with the true focus of this case now being on the limited issues that I have set out above – especially relevant will be these questions: i) Where are these people to live and ii) what incomes are these people to have?.

  1. Although I am not in any way deciding the point now, I foresee that the husband will have a difficult task in contending that this wife should face a time limit to any order for periodical payments particularly if it involves a s28(1A) bar but even without such a bar.
  2. I intend that the above issues must be adhered to. There will be no more profligate expenditure on legal costs. To that end I wish to record that any District Judge assessing the costs of either party from this point on until conclusion of the rehearing should disallow that parties’ costs insofar as the costs of any party (from this point onwards) exceed £7,500 unless a) any party has made submissions to me that I should revise that figure or b) the judge carrying out the assessment considers that an extension beyond that figure was genuinely necessary.
  3. I strongly recommend now that the parties make every effort to resolve their differences without the need for the rehearing to take place.
  4. I reserve the costs of the appeal until conclusion of the rehearing. Both of these parties know what their own financial circumstances are and, with the level of costs that she has incurred, the wife should know about her tax credit position (and, if she doesn’t she needs to find it out hurriedly). Although I do not know what the husband’s income is, he does. If it were to be shown on fresh evidence that the District Judge was correct about his income, that would be bound to have an impact on the orders for costs that I would make.

Court of Appeal say no judicial power to order Court to pay for legal costs

 

Very grateful to Noel Arnold of Coram Legal Child’s Centre for alerting me to this.  You may be aware that post LASPO, there will be parents who will have to represent themselves in court proceedings who would previously have got free legal representation.

The Courts have been concerned for some time about cases in which it would seem to be a breach of article 6 to make a parent represent themselves, and particularly where that would involve a parent cross-examining a child or their former partner about abuse.  The provision in LASPO SHOULD capture those cases and grant exceptional funding where there’s a potential breach of human rights, but in practice it just isn’t happening.

The President has done a few of these cases and pushed the Legal Aid Agency to the brink, by saying that if they didn’t provide funding, he would order that the costs of legal representation should be paid by the Court. Up until now, the Legal Aid Agency have folded (but only in the cases before the President, which is not ideal)

Well now, in Re K-H (children) 2015, they didn’t fold, the Court made an order that a lawyer be provided and paid for by the Court service. The Lord Chancellor appealed it. And the Court of Appeal agreed that there was NO POWER to do that.

 

That leaves us all in a mess. The only thing that the Court can really do now is give a judgment that it would be a breach of article 6 to proceed – but where does that leave the case?  Can the Court make a decision that the Court itself has breached father’s article 6 rights and make an order that the Court pay compensation?  (allowing the money to then be used by the father to pay a lawyer?)   Almost certainly not.

I can’t get the link to the judgment to work at present to chew over the detail, but here is the Children’s Legal Centre summary.

 

http://www.childrenslegalcentre.com/index.php?page=judgment_in_court_of_appeal_case_in_which_cclc_intervened

 

The LASPO safety net is a fig leaf

Oh, you’re going to like this one.

This decision from Mostyn J is quite involved, but significant. Even if you aren’t that interested in the very peculiar mechanics, what he had to say about LASPO (see title of the piece) is striking.

 

MG and JG v JF 2015

http://www.bailii.org/ew/cases/EWHC/Fam/2015/564.html

 

To make it less alphabet soup, I’ll give people names (these are NOT their real names, I’ve made them up)

Jean Grey and Marie Grey were lesbian partners. They wanted to have a child and advertised for a man to provide gametes to make this happen. Jim Francis agreed to do this.

 

The child is born, and named John Fitzgerald Grey.

Jim Francis was having quite a lot of contact with little John, once or twice a month. This all changed when Marie Grey became pregnant with a second child (that donor thankfully isn’t involved in this case), and Marie and Jean stopped Jim’s contact.

 

Jim makes an application to court for contact. Jean and Marie learn that post LASPO they don’t qualify for legal aid. Jim on the other hand has some means and can pay privately.  [He could not be described as being wealthy – it is more comfortably middle class. His property is valued at £1.2 million and he earns £67,000 per year. Sufficient to pay his own legal fees – though probably not without a degree of wincing when he writes the cheques, but we are not in big money divorce territory here]

 

At some point, someone comes up with a cunning wheeze. An application can be made under Schedule 1 of the Children Act 1989 for some of Jim’s capital to be released to the child, and those funds can be used to pay for Marie and Jean’s legal costs.

That sort of thing isn’t that unusual in big money divorce cases where one person holds all of the assets – the Court order that they release some of the disputed funds to the other party to cover their legal costs and when the money is all divvied up at the end, that can be taken into account.

 

But this is a contact application – there isn’t going to be a share out of money at the end.  And as we know, the law in children cases is that each side pays their own costs, unless one party has behaved terribly badly. No suggestion of that here.

So this is in a sense, an application that Jim Francis uses his own money to pay for the other side to fight his application, even though he has done nothing wrong.  Unusual.

 

Firstly then, why shouldn’t Marie and Jean represent themselves, as envisaged by LASPO?

In this case it is my firm view that it is impossible for MG and JG to be expected to represent themselves having regard to the factual and legal issues at large. There would be a gross inequality of arms, and arguably a violation of their rights under Articles 6 and 8 of the European Convention on Human Rights and Article 47 of the European Charter of Fundamental Rights. So even though it cannot be said that JF has behaved reprehensibly or unreasonably he is the only realistic source of costs funding, subject to whatever contribution MG and JG should make from their own very limited resources. Some may say (and have said) that this is grossly unjust; I myself refrain from comment.

 

[I’m not quite sure it is accurate that Mostyn J refrains from comment. He doesn’t make direct comment, but I think the next section gives you a pretty clear idea of his thinking]

 

We add to the complexity that Jean and MArie split up with a degree of acrimony, and that the case also involved disputed about whether the child should be vaccinated.

Mostyn J is scathing here about the changes and the lack of foresight in seeing that cases are inevitably going to emerge where a lack of legal aid causes huge difficulties and unfairness.  This is a breathtaking and masterful dissection of the disaster that LASPO has been for individuals.

 

  1. With very few changes the government’s proposals were enacted in LASPO. A safety net was included by section 10(3)(b) which gave the Director of the Legal Aid Agency the discretion to award legal aid where “it is appropriate to do so, in the particular circumstances of the case, having regard to any risk that failure to do so would be …a breach [of Convention or EU rights].” As the President explained in Q v Q (No. 2) [2014] EWFC 31 at paras 6 – 8 the Lord Chancellor issued guidance concerning section 10(3)(b) which stated that it should be confined to “rare” cases which are of the “highest priority”. But this guidance has been quashed as legally defective by Collins J in Gudanaviciene & Ors v Director of Legal Aid Casework & Anor [2014] EWHC 1840 (Admin). That decision is under appeal.
  2. As the President explained in Q v Q the number of annual cases where the safety net has been applied can be counted on the fingers of two hands. In the year to March 2014 there were 9. Indeed between December 2013 and March 2014 one solitary case was caught by the safety net. The President stated at para 14 “if the scheme is indeed working effectively, then it might be thought that the scheme is inadequate, for the proper demand is surely at a level very significantly greater than 8 or 9 cases a year.” Thus it would be perfectly reasonable to describe this “safety net” as a fig leaf. MG and JG have not applied for exceptional funding under section 10(3)(b), no doubt taking the realistic view that any such application would be rejected summarily.
  3. Since the reforms have taken effect there have been an appreciable number of cases which have demonstrated that the blithe assumption in the consultation paper (that the parties’ emotional involvement in the case will not necessarily mean that they are unable to present it themselves, and that there is no reason to believe that such cases will be routinely legally complex) is unfounded. This was entirely predictable. The cases are Kinderis v Kineriene [2013] EWHC 4139 (Fam) (18 December 2013, Holman J); Re B (a child) (private law fact finding – unrepresented father) [2014] EWHC 700 (Fam) (27 January 2014, Judge Wildblood QC); Q v Q [2014] EWFC 7 (21 May 2014, the President); Q v Q (No. 2) [2014] EWFC 31 (6 August 2014, the President); Re H [2014] EWFC B127 (14 August 2014, Judge Hallam); Re D (A Child) [2014] EWFC 39 (31 October 2014, the President); CD v ED [2014] EWFC B153 (14 November 2014, Judge Hudson); Re D (A Child) (No. 2) [2015] EWFC 2 (7 January 2015, the President); and Re K & H (Children: Unrepresented Father: Cross-Examination of Child) [2015] EWFC 1 (5 January 2015, Judge Bellamy). This is a formidable catalogue. Each case focussed on the gross unfairness meted out to a parent in private law proceedings by the denial of legal aid. I do not think it would be right to say that these were examples of the operation of the law of unintended consequences since, as I say, the problems were so entirely predictable.
  4. Also of relevance is JG v The Lord Chancellor & Ors [2014] EWCA Civ 656 (21 May 2014) where the Court of Appeal held that the refusal of the (then) Legal Services Commission (LSC) to meet the cost of an expert report was unlawful. A district judge had ordered that the legally aided child, who was a party to the proceedings, should pay for that report. The order recorded that “the cost of the report to be funded by the child, the court considering it to be a reasonable and necessary disbursement to be incurred under the terms of her public funding certificate.” In the face of a dogged refusal to comply with this order by the LSC the district judge later ordered that:

    “The cost[s] of the expert to be funded by the child the court considering them to be a reasonable and necessary disbursement under her certificate and the purpose of the report is solely to establish what arrangements are in her best interests. Furthermore, the court has carried out a means assessment of both parents and found that they are unable to afford any part of these fees. In reaching this conclusion the court considered the provisions of section 22(4) of the Access to Justice Act 1999.”

    Notwithstanding this ruling the Legal Aid Agency (as the LSC had become) persisted in its refusal, and judicial review proceedings had to be commenced. The Legal Aid Agency actually succeeded at first instance but in the Court of Appeal, despite elaborate and trenchant argument by it and by the Lord Chancellor, who had intervened, its decision to refuse to comply with the order and to fund the report was held to be unlawful.

  5. In Lindner v Rawlins [2015] EWCA Civ 61 the Court of Appeal heard an appeal by an unrepresented husband against a refusal to order police disclosure in defended divorce proceedings. The wife was neither present nor represented. Aikens LJ observed that the appeal was technical and unusual and that the husband could not be expected to have mastered this area of the law in order to be able to present his appeal in a way that assisted the court. He bemoaned the lack of the legal assistance of counsel that the court should have.
  6. I need only cite a few of the judicial observations. In Kinderis v Kineriene Holman J described the position in which the unrepresented mother in Hague proceedings found herself as follows:

    “The present procedure operates in a way which is unjust, contrary to the welfare of particularly vulnerable children at a time of great upheaval in their lives, incompatible with the obligations of this state under Article 11(3) of the [B2R] regulation, and ultimately counter-productive in that it merely wastes taxpayers’ funds”

    In Re H Judge Hallam was dealing with an unrepresented mother with speech, hearing and learning difficulties. An official of the Legal Aid Agency stated that there would be no breach of convention rights were she to remain unfunded. Judge Hallam stated “I find that statement astounding”. In Re D the unrepresented father, who lacked capacity, had made an application to revoke a care order; the local authority had applied for a placement (for adoption) order. After heavy pressure from the President some legal aid was eventually awarded. At para 31(vi) of his first judgment the President stated:

    “Thus far the State has simply washed its hands of the problem, leaving the solution to the problem which the State itself has created – for the State has brought the proceedings but declined all responsibility for ensuring that the parents are able to participate effectively in the proceedings it has brought – to the goodwill, the charity, of the legal profession. This is, it might be thought, both unprincipled and unconscionable. Why should the State leave it to private individuals to ensure that the State is not in breach of the State’s – the United Kingdom’s – obligations under the Convention?”

    At para 21 of his second judgment he stated that “the parents can be forgiven for thinking that they are trapped in a system which is neither compassionate nor even humane.”

  7. In Lindner v Rawlins at para 34 Aikens LJ stated:

    “Yet again, the court was without any legal assistance and had to spend time researching the law for itself then attempting to apply it to the relevant facts in order to arrive at the correct legal answer. To do the latter exercise meant that the court itself had to trawl through a large amount of documents in the file. All this involves an expensive use of judicial time, which is in short supply as it is. Money may have been saved from the legal aid funds, but an equal amount of expense, if not more, has been incurred in terms of the costs of judges’ and court time. The result is that there is, in fact, no economy at all. Worse, this way of dealing with cases runs the risk that a correct result will not be reached because the court does not have the legal assistance of counsel that it should have and the court has no other legal assistance available to it.”

  8. These are powerful criticisms. The President suggested that if the Legal Aid Agency would not award legal aid to an unrepresented parent facing serious allegations then the court might have to do so from its own budget. In Re K & H that was the course proposed. The Lord Chancellor instructed leading counsel who bravely argued that the President’s analysis of the existence of this power was “plainly wrong”. Judge Bellamy disagreed and awarded representation from the court budget. The Lord Chancellor is appealing that decision. It can safely be assumed that the criticisms I have recounted have fallen on deaf ears. Based on the decisions I have cited, including no fewer than four from the President himself, it can be said that in the field of private children law the principle of individual justice has had to be sacrificed on the altar of the public debt. And based on the observation of Aikens LJ, it can reasonably be predicted that the phenomenon of the massive increase in self-representation will give rise to the serious risk of the court reaching incorrect, and therefore unjust, decisions.

 

Just in case you missed it, yes, that was a High Court judge saying that in private family law, the principle of individual justice has been sacrificed on the altar of public debt. And that LASPO is likely to lead to incorrect and unjust decisions.

That noise you can hear just to your leftmy applause echoing.

So, with legal aid not being available, and it being unfair for Jean and Marie to act in person, that was really only leaving Jim Francis as a source of funding.

How much money were we looking at?

  1. Decision
  2. In my judgment JF should pay 80% of each of the claims of MG and JG. Therefore he will pay MG £12,202 and JG £8,394. In addition he will pay 80% of all future professional costs in respect of therapeutic work and MG and JG will each pay 10% of such costs.
  3. Thus MG will have to find £3,050 and JG £2,098 and they will each have to find 10% of the future costs of therapeutic work. In my judgment they cannot reasonably or realistically be expected to find more. By contrast, I am satisfied that JF can find, without undue hardship, the share with which I have shouldered him.
  4. It could be said that it is grossly unfair that JF should have to pay now £20,596 plus 80% of the future therapeutic costs up to the IRH. But that is where the government has left him. It is a sorry state of affairs.
  5. This leaves the costs of expert evidence which will come into being between now and the IRH. The consent order provides for the educational psychologist to answer further questions and for the psychologist to file an addendum report. In my judgment these should be paid for by JFG and in my opinion such fees are a reasonable charge on his legal aid certificate, for the following reasons.
  6. In JG v The Lord Chancellor & Ors Black LJ explained at para 92 that when read with FPR rule 25.12(4)(a) (which provides that the court may give directions about the expert’s fees and expenses) rule 25.12(6) (which provides that provides that unless the court directs otherwise, the relevant parties are jointly and severally liable for the payment of the expert’s fees and expenses) is not intended to be prescriptive and merely establishes a default position for financial responsibility for the expert in the event that the court does not direct otherwise. She stated: “I do not see it as setting up a ‘normal rule’ that the cost is to be apportioned equally.”
  7. She further explained at para 93 that in order not to fall foul of section 22(4) of the Access to Justice Act 1999 that:

    “It is necessary to ask what order the court would make in its discretion on the particular facts of that case, leaving aside any resources problems. The answer may not uncommonly be an order for equal apportionment of the costs but that cannot be assumed. It may be that a full consideration of the circumstances of the case produces the result that the publicly funded party should be paying a greater share of the costs in any event, quite irrespective of any financial difficulties that the other parties may have in sharing the cost of the expert. In such circumstances, section 22(4) does not prevent the court from making an order accordingly, because the order is in no way affected by the fact of public funding.”

  8. I do not think that the imaginary scenario that I have to address assumes that everyone is of means. Rather, it assumes the facts as they are with the sole exception that the child is not legally aided but is funded from another source, such as his own means or the means of a relative of substance. Were that the position I would have no hesitation in making an order that JFG bear the costs of these further reports given that MG and JG do not, on my findings, have the means to do so, and given the burdens that I have already imposed on JF. Further, and in any event, it is just and reasonable that JFG bears these costs whether or not he is legally aided because at the end of the day these fees are being incurred primarily for his benefit.

 

 

And again, you read that right, that is a High Court Judge making a decision and saying that some could describe that decision as being grossly unfair but that this is the position that the Government have put this man in.

I partially wondered whether Mostyn J made this decision with a view to it being appealed and having the Court of Appeal rule that it would instead be right for the public authority (the Court) to fund the costs – at the moment, we only have the President’s hints that this is a route and His Honour Judge Bellamy doing it.  A Court of Appeal authority would be much more powerful. I’m not so sure though – an appeal (particularly paying the other sides costs) would run to more than this sum of money, and I think it is unlikely that Jim Francis would be tempted into appealing.

It is, as Mostyn J has said, a sorry state of affairs.

 

It makes uncomfortable reading for donors, or in fact any party in private law proceedings who is earning that sort of money (£67,000 is a lot, but it is not the riches of Croesus; it could easily bite on people who would much rather not spend half of their gross annual income on one court case)