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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…]

 

 

 

Wasted costs

 

I think most practitioners are aware that this has been coming, and one has now hit.

 

HU v SU 2015

 

This was in private law proceedings, and the father was paying privately, so there actually were costs that were incurred. It relates to the inability of the mother’s team to get police disclosure (caused in part because the Legal Aid Agency had dallied in processing the extension to her certificate)

 

The mother’s solicitors had written to the Court and the father, but what they had not done was applied to vary the existing order about timetabling and to thus obtain an extension from the Court.

http://www.bailii.org/ew/cases/EWFC/HCJ/2015/535.html

 

Here is the  law on costs, as set out in Ridehalgh v Horsefield 1994 http://www.bailii.org/ew/cases/EWCA/Civ/1994/40.html

 

“a) Had the legal representative of whom complain was made acted improperly, unreasonably or negligently?

b) If so, did such conduct cause the applicant to incur unnecessary costs?

c)If so, was it, in all the circumstances, just to order the legal representative to compensate the applicant for the whole or part of the relevant costs?”

 

That has always been considered quite a high test, because of the wording in (a).  What HU v SU does is confirm the High Court’s view that post the cascaded authorities of the President in Re W (adoption order leave to oppose) 2013 (remember the contumelious attitude case?) http://www.bailii.org/ew/cases/EWCA/Civ/2013/1177.html

 

that :-

 

It must now be clear and plain to any competent family practitioners that:

i) court orders must be obeyed;

ii) a timetable or deadline set by the court cannot be amended by agreement between the parties; it must be sanctioned by the court; and

iii) any application to extend the time for compliance must be made before the time for compliance has expired.

 

And thus that failure to do so amounts to improper or unreasonable conduct for part (a) of the Ridehalgh test.

 

In this particular case

  1. He  [Mother’s counsel]referred me to a chronology of relevant events. On 16.12.14 the mother’s solicitors sought a further extension to the mother’s public funding certificate. It was not granted until 13.1.15 and as a result of the delay in granting the same a letter of complaint was sent to the Legal Aid Agency.
  2. On 7.1.15 they sent a letter to the father’s solicitors setting out that an extension of public funding was still awaited and requesting a one week extension for the filing of the mother’s statement (orders to be filed and served by 10.1.15). Crucially this letter did not set out that police disclosure had not yet been formally sought and no communication was sent to the court.
  3. On 16.1.15 the mother’s solicitors wrote to the father’s solicitors and to the court notifying them that the mother’s public funding certificate had been extended, police disclosure had been requested and that the mother’s statement and schedule of findings would be filed and serve after police disclosure had been received.
  4. I have a number of observations: i) the letter to the court was not noted to be for the attention of me or my clerk and it was incorrectly addressed. I did not receive it;

    ii) the solicitors had decided that the statement and schedule would be filed after police disclosure had been received. No such linkage or sequential process was made or set out in the order of 15.12.14; and

    iii) no application was made for an extension of time to file the police disclosure and/or the mother’s statement and schedule.

  5. A further letter is sent to the father’s solicitors and the court dated 23.1.15. Once again the letter is incorrectly addressed and was not received by the court. Furthermore it merely apologised for the further delay in obtaining police disclosure and nothing else.
  6. On 29.1.15 yet another letter is sent to the father’s solicitor but not to the court) setting out that the mother would not be able to complete her statement or a schedule until police disclosure had been received. No time for receipt of the police disclosure was given, however, on the same day the mother’s solicitors chased the Metropolitan police in respect of the disclosure sought.
  7. By an email sent on 30.1.15 to the court, the father’s solicitors sought an urgent directions hearing. On the same day the mother’s solicitors sent a letter to the court and to the father’s solicitors. It once more asserted that the mother could not file a statement or a schedule without sight of the police disclosure. The letter did not: i) set out what steps had been taken to secure disclosure from the police;

    ii) it did not set out any date or likely timeframe by which disclosure would be made by the police;

    iii) seek an extension of time in which to file the police disclosure and/or the mother’s statement and schedule; and

    iv) a revision of the timetable set by the court on 15.12.14.

  8. At the directions hearing on 4.2.15 I directed the Commissioner of the Metropolitan Police to provide the disclosure sought by noon the following day. The mother was to file and serve her statement and schedule by 6.2.15 and the father his statement and schedule by 9.2.15. Those orders were complied with and it was possible for the fact finding hearing to proceed but at considerable cost to the father, who is privately funded, of legal fees incurred by attendance at the urgent directions hearing.
  9. Mr Newton QC recognises the faults of his instructing solicitors. He characterises them as errors and oversights for which his solicitors profusely apologise, but which he submits did not pass the high hurdle of egregious conduct which merits being condemned by the making of a wasted costs order. He rightly reminds me of the considerable professional embarrassment which can result from the making of such an order.
  10. In my judgment however the serial failures of the mother’s solicitors were elementary. The failure to seek the leave of the court to extend the time for compliance with the directions order of 15.12.14 is to be characterised as incompetence, the result of which could have been the adjournment of this fact finding hearing. Their actions, as set out above, are redolent of past poor practices which should no longer feature in private or public law family proceedings.

 

In this case, a hearing took place that was ineffective, because the police disclosure had not been obtained and thus the statement and schedule of allegations weren’t filed. That hearing did cost the father money, and he was entitled to recover that from the mother’s solicitors (not mother)

  1. I am satisfied that the conduct of the mother’s solicitors is so serious and so inexcusable that I find that they acted improperly and unreasonably. Further the conduct caused the father to incur unnecessary costs. Finally in all of the circumstances I consider it just to order the mother’s solicitors to compensate the father for the whole of the costs he incurred by reason of the directions hearing on 4.2.15.
  2. I shall make a wasted costs order against the mother’s solicitors. The father’s costs of the February directions hearing will be subject to a detailed assessment.

 

I hope that Court staff up and down the country are ready for a barrage of applications, because it is plain now that not making an application to extend a timetable (whether in private law OR public law) exposes the lawyer to a risk of a wasted costs order.

Even where, as in this case, that the delay was a result of external agencies (the police and the Legal Aid Agency), the fault still lies with the lawyer for not applying for an extension of time.

“An unhelpful cocktail”

 

The interesting case of Re A (A Child) 2013.

 

The Court of Appeal dealt here with a case where some pretty appalling case management occurred with the appellants legal team, and whether a costs order should flow from that. They determined that in the absence of being able to show that costs had been incurred by the other parties for which they could be compensated, one could not make a wasted costs order purely as a punitive measure, no matter how awful the litigation conduct.

 

But it is worth looking at the litigation conduct, just because it is a dull day indeed when one isn’t interested when “I could a tale unfold whose lightest word would harrow up thy soul, freeze thy young blood, make thy two eyes like stars start from their spheres. Thy knotted and combined locks to part, and each particular hair to stand on end. Like quills upon the fretful porpentine…. “

 

 

Lo, the case is here:-

 

http://www.bailii.org/ew/cases/EWCA/Civ/2013/43.html

 

 

The appeal related to a serious finding of fact hearing in care proceedings, a significant number of fractures on a very young baby, where the Judge found that these were caused non-accidentally.

 

Some time after those findings, the solicitors representing the parents became aware of the decision in London Borough of Islington v Al Alas and Wray [2012] EWHC 865 (Fam)    and legitimately considered the findings again in the light of that case, particularly whether there was an alternative medical explanation along the lines of vitamin D deficiency and rickets.

 

They sought leave to appeal from the trial judge, who refused.

 

They then applied to the Court of Appeal, primarily asking whether leave to instruct an expert to look at the case was required. The Court of Appeal considered the case, felt that a fresh expert assessment was desirable and granted that leave, then listing a Permission to Appeal hearing to take place after the expert assessment could be considered.

 

All of that is perfectly fine and proper.  

 

[I blogged about that appeal hearing HERE   https://suesspiciousminds.com/2012/11/22/more-on-vitamin-d-and-rickets/ 

 

In short, the Court of Appeal did not consider that the Judge at first instance was wrong, let alone plainly wrong, and that the medical evidence, including the fresh report came nowhere near substantiating a medical explanation for the fractures. ]

 

 

But this particular judgment comes about as a result of the Local Authority and Guardian feeling so aggrieved by the parents litigation conduct that they asked for a costs hearing.

 

This is why :-

 

 

  1. 6.       a) At the first, without notice, oral hearing the solicitors failed in their duty to provide the court with full and frank disclosure of all relevant material. In particular the bundle submitted did not include the original fact finding judgment or the section of the trial bundle that included the expert medical evidence;

b) The court was misled by an assertion in the grounds of appeal that the solicitors had had to prepare the case in a limited time period, whereas the reality was that they had the papers in the case for 18 weeks prior to filing their grounds of appeal;

c) After the September hearing the solicitors failed to disclose any relevant and necessary information to the Local Authority and the solicitors for the child until 16th October. The information withheld included a note of the 19th September hearing, the letter of instruction to Professor Nussey, Professor Nussey’s report (which had been received on 3rd October), the progress report sent by the parents’ solicitors to the Court of Appeal on 3rd October in accordance with my direction and any detail of the extensive supplementary questions and communications passing between the parents’ solicitors and Professor Nussey;

d) Professor Nussey was not instructed in a manner that would comply with the Family Procedure Rules 2010, Part 25 and the associated Practice Direction governing the instruction of experts. In particular, the Professor was not furnished with a copy of the 2010 fact finding judgment and/or the expert medical reports upon which the judge had relied. Instead the Professor was, for example, provided with the parents’ solicitors’ critique of that judgment setting out some 26 points which they said supported a benign medical explanation for the fractures that had been detected;

e) Once Professor Nussey’s report was available to the parents’ legal team, a clear view should have been taken that there was no longer any prospect of achieving permission to appeal. The decision to press on and mount arguments which this court ultimately found were unsustainable, went beyond the bounds of pursuing a hopeless case and amounted to an abuse of the court process.

  1. Ms Jo Delahunty QC, representing the child, supports the criticisms made by the Local Authority and seeks to stress the substantial degree to which, in her submission, the parents’ solicitors fell short of their duty to comply with the ordinary standards of transparency and co-operation required of those engaged in child protection proceedings in the Family Division. In particular, she points to the fact that the non-disclosure for nearly a month of information relating to the without notice hearing in September was not a result of inefficiency or incompetent administration, but arose from the deliberate assertion by the parents’ solicitors that the other parties were simply not entitled to any of this material unless and until permission to appeal is granted. She is also particularly critical of the way in which the expert was unilaterally lobbied by the parents’ legal team with, it is suggested, the aim of turning his initial adverse opinion into one which was more favourable to their case.
  1. In addition to the criticisms made of the litigation actions in the period between 19th September and 1st November, both counsel for the Local Authority and counsel for the child draw the court’s attention to the stance taken by the parents’ representatives at this hearing. Mr Prest drew attention to what he regarded was the startling difference between the world view in relation to these matters taken by the parents’ representatives and the reality of the approach required by the Family Justice System. In similar terms Ms Delahunty submitted that, in seeking to explain their behaviour and avoid adverse criticisms, counsel for the parents’ solicitors, Mr Michael Shrimpton, in his skeleton argument, was simply not speaking in the same language as the lawyers representing the Local Authority and the child. In particular Ms Delahunty points to the fact that, rather than offering an acceptance of poor case management and an apology to the court, Mr Shrimpton’s skeleton argument seeks to meet each of the matters raised head on and to question their validity. For example the case for the parents’ solicitors, who are a well known Birmingham firm of family specialists, questions the validity and legitimacy of FPR 2010 Part 25 insofar as it applies to Family Proceedings at first instance and asserts that, in any event, those provisions have absolutely no application to a pending appeal. They assert that the instruction of an expert in the course of an application for permission to appeal may be undertaken in total disregard of the Family Procedure Rules and the practice otherwise applicable to a family case.

 

 

 

Let me just flesh that out, because it may be so peculiar that it does not quite sink in – they obtained permission to appeal saying that they had had ‘limited time to prepare their case’ (when they had in fact had 18 weeks – some people, not me, but some other people, might actually go so far as to say that this is not a generous interpretation or disingenuous, or misleading, but a straight downright lie)

 

having obtained the permission of the Court of Appeal to instruct an expert, the parents solicitors then don’t give the expert the medical reports AND Judgment in the fact finding hearing, but instead a sprawling 26 point submission prepared by them as to why rickets is the cause of the injury, they don’t try to agree a letter of instruction or include any questions that the other sides would like asked, they don’t initially disclose the report of that expert to the other sides, they try to get the expert to change his mind after seeing his report, and when all of this is highlighted to them, they argue that the Family Proceedings Rules don’t apply to appeals in, erm family proceedings.

 

 

I also like this bit – the parents solicitors, in another case (oh my god) had gone off to get an overseas expert without leave of the court and then (once it was favourable to rely on it)

In January 2012 the parents’ solicitors acted for different parents in an application for permission to appeal which is now reported as Re McC (Care Proceedings: Fresh Evidence of Foreign Expert) [2012] EWCA Civ 165; [2012] 2 FLR 121. In that case, without the knowledge of, let alone the leave of, the Court of Appeal, the parents’ solicitors obtained a medical report from an American paediatrician and sought leave to adduce it as fresh evidence to support a proposed appeal. In his judgment refusing permission to adduce the evidence, with which the other two members of the court agreed, Thorpe LJ said:

 

“14. There are many reasons for refusing this application. It does not begin to satisfy the conditions identified in the well known case of Ladd v Marshall [1954] 1 WLR 1489. It is a report which is deeply flawed in the manner of its production. The respondents to these proceedings were given no notice of the intention to go elsewhere and to knock on another expert door. No permission was sought from this court either to instruct another expert or to release documents from the case to that expert and such documents as were released were not comprehensive and were apparently partisan.

15. I would have absolutely no hesitation in refusing this application but I do want to emphasise that there is, in my judgment, an obligation on an applicant for permission, or an appellant who has obtained permission, to seek leave from this court before instructing a fresh expert and releasing court papers to that expert for the purposes of the hearing of either an adjourned application for permission or an appeal.

16. I would also emphasise the importance of the Guidelines for the Instruction of Medical Experts from Overseas in Family Cases, endorsed by the President and published by the Family Justice Council last month. They must by extension apply to appellate proceedings although the guidelines are of course written specifically in contemplation of proceedings at first instance.”

 

  • Mr X submits that both he and his instructing solicitors were unclear as to the meaning of those passages from Thorpe LJ’s judgment in Re McC. He tells me that they did not understand whether or not it was incumbent upon them to apply for the leave of the Court of Appeal before seeking to instruct an expert to provide a report for use in support of their application for permission to appeal. In their minds, therefore, the purpose of the 19th September hearing was simply to seek the direction of the Court of Appeal on whether or not a full blown application for leave to instruct an expert, which Mr X tells me would have been on notice to the other parties, should be made. 
  • I confess that I am at a loss to understand that submission and ask, rhetorically, how Mr X and the Solicitors Firm could fail to understand the words “there is …. an obligation …. to seek leave from this court before instructing a fresh expert”. The account given in the Notice of Appeal to the effect that the Court of Appeal decision in Re McC, from which I have quoted, had simply ‘expressed some sympathy’ with the view that leave to instruct an expert was required and that the decision had not by that stage been reported is, on the facts, plainly unsustainable. 
  • The words of Lord Justice Thorpe are entirely plain and clear and, for the record, I regard his words as being entirely uncontroversial. The general approach, if not indeed the detailed requirements, of the Family Procedure Rules must, as Thorpe LJ holds, by extension apply to appellate proceedings.

 

So even though the firm of solicitors had been slapped by the Court of Appeal for getting a back door expert, and the Court of Appeal had given clear guidance on this exact point, they didn’t understand what it meant?

 

But all of that is okay, because the counsel representing them (although not a care lawyer, or indeed a family lawyer) is :-

 

 

a member of British Mensa and that he ‘by definition brings a Mensa-level intellect to the analysis of complex scientific and legal issues’

 

 

[If you are wondering, the quotation marks do indeed indicate that the Court of Appeal are quoting directly from counsel’s own skeleton argument. Yes, in a costs hearing in the Appeal Court, before Lord Justice McFarlane, this barrister put in writing that he was clever…. – not just in writing, but orally, and not just once, but “on a number of occasions”]

 

 

Oh. My. God.

 

If you aren’t cringing, writhing a tiny bit and dying a little bit inside on behalf of this man, you are a crueller person than even I am.

 

 

  1. Mr X’s approach to these proceedings readily supports the submissions that I have recorded from both of the opposing counsel to the effect that the case he presents comes from a totally different ‘world view’ and speaks in a ‘different language’ from that of the local authority and the child’s legal team. Mr X is a brave and confident advocate who gives the strong impression of believing the cause for which he advocates. These various factors, high intellect, a lack of understanding of the justification for the approach taken in family proceedings and the brave championing of a cause, are, in my view, the unhelpful cocktail of elements which have come together in counsel’s presentation of the parents’ case in these proceedings. The local authority seeks to hold the parents’ solicitors responsible for this on the basis that they selected the particular counsel for these hearings. That submission is, in my view, not sustainable when it is clear, as it is, that the argument that became the focus of the application and was then sustained on to the second hearing was crafted by counsel and not by the solicitors. Mr X told the court that, following receipt of Professor Nussey’s report, the solicitors sought his advice on the future viability of the application for permission and that as a result of that advice the case continued. An indication of counsel’s faith in his clients’ case at the second hearing was the very surprising information, as reported to me during the hearing, that Mr X had approach Ms Delahunty outside court to enquire if the children’s guardian was going to support the application for permission to appeal.
  1. My clear conclusion is that the manner in which the application for permission was pursued, after receipt of Professor Nussey’s report had removed from it any true validity, arose almost entirely from the wholly over optimistic judgment of counsel and not from any improper or unreasonable act or omission of the solicitors. By the end of the present hearing this understanding of events seemed to be shared by Mr Prest for the local authority when, after all of the submissions were complete, he made an application to include Mr X in the wasted costs application. I refused that application on the basis that the case had by then been heard and concluded on the basis that Mr X was not in the frame and that it would by that stage be oppressive to alter the focus of the application to include him.

 

 

Oh, I want to look at that again, let’s just do this one bit

 

Mr X is a brave and confident advocate who gives the strong impression of believing the cause for which he advocates. These various factors, high intellect, a lack of understanding of the justification for the approach taken in family proceedings and the brave championing of a cause, are, in my view, the unhelpful cocktail of elements which have come together in counsel’s presentation of the parents’ case in these proceedings

 

 

He was SO lucky to escape without a cost order.

 

 

It must have been fairly close as to whether the costs of the appeal hearing itself, were incurred as a result of advice which could not be sustained on the evidence.  It was in part, I think, the fact that it was counsel’s clear advice and driving of the process that absolved the solicitors from blame in not abandoning their appeal once the expert they had instructed (and attempted to nobble) hadn’t supported them.  If you can’t persuade an expert who you have blatantly tried to manipulate into supporting your case to support you, you really don’t  have a winnable case and that would be the time to abandon the appeal. They didn’t. They pressed on.  One can see from the previous blog and judgment just how much work went into that appeal hearing, particularly from leading counsel for the child, Ms Delahunty.

 

 

Of course, I could be wrong – perhaps the Mensa level intellect which counsel brought to bear in the case foresaw that as the Guardian and LA hadn’t included him in the wasted costs application, he could save his solicitors from a wasted costs order that was otherwise heading their way by convincing the Court that all of the faults were of his making. Perhaps he was nobly falling on his sword and was in reality blameless.

 

I would politely suggest that any counsel who are card-carrying members of Mensa to eschew the desire to flaunt this in front of the Court of Appeal in any future hearings.

 

 

[I’m sure 95% of Mensa members are witty, suave, urbane, good company, romantically successful, essentially happy, well-balanced, productive, helpful and fascinating, and that I have just been very  unlucky in meeting the small proportion who spoil it for them….   I did also remove an “a bit like the American Express advert – it’s four letters too long”  joke from this piece, but I’m sure you can work it out for yourselves]

 

 

If you are interested in instructing an overseas expert in care proceedings – perhaps you like paperwork, perhaps you enjoy the game of Russian Roulette that is incurring costs that the LSC might or might not underwrite, perhaps you just enjoy having telephone calls at 4.00am, there’s some guidance about how to do it, here :-

http://www.judiciary.gov.uk/JCO%2FDocuments%2FFJC%2Ffjc_guidelines_for_overseas_experts_Dec2011.pdf

 

 

 

If you must Hague, don’t be vague

 

The “too long, didn’t read” version – if you’re making an application in the High Court under the Child Abduction and Custody Act 1985, bring your chequebook. And if you’re doing that, and are listed before the Honourable Mr Justice Charles, ring your bank manager first.

 

 

A discussion of the decision in the High Court of B v A 2012

 

http://www.bailii.org/ew/cases/EWHC/Fam/2012/3127.html

 

As readers of the blog will know, I often lavish praise on High Court Judges. I am fond of High Court Judges who have admirable qualities, such as clarity of thought, beautiful construction of sentences, being able to illuminate a difficult point with a clever analogy, or who are fundamentally kind and appreciate the human dynamics of the cases that appear before them.

 

I am not afraid of distributing praise in those circumstances – I would say fulsome praise, but I am mindful of the words of Inigo Montoya   (no, not, “my name is Inigo Montoya, you killed my father, prepare to die!”  – the other one)  “You keep using that word. I do not think it means what you think it means”

 

Don’t ever say fulsome if you mean generously complimentary….   Or at least, not to a word-geek.

 

 

Anyway, this judgment is by the Honourable Mr Justice Charles and is bloody important for anyone who deals with abduction cases, both solicitors and counsel.

 

 

It would be fair to say that he was irked during the course of this judgment. He considered that insufficient care had been given both to the very serious nature of the application for a location order and to involve the tipstaff, and moreover to the inherent risks of doing so where the initial application was made ex parte, and the facts laid out before the Court were both partial  and potentially partisan.

 

The Judge begins by setting out the reasons why making such orders is extremely serious

 

  • Tipstaff orders, and thus location orders, are (and are designed to be) powerful weapons in the search for children and the determination by the courts of England and Wales of issues relating to their future. They enable public authorities to interfere in the private lives of adults and children and carry serious penalties. It should be known to all judges who grant them that experience has shown that: 

    i) the travelling time of a flight to England can often allow for steps to be taken to meet the relevant adult and child at the airport on arrival, 

    ii) the orders can often be triggered when an adult comes to the notice of the police for some other reason (e.g. a motoring offence), and

    iii) these possible triggers to an order mean that care needs to be taken to ensure that their enforcement (and so possibly an arrest and detention under them) only remains a possibility for as long as they are needed to fulfil their purpose.

     

  • The potentially serious impact of such orders means that those who apply for them and those who grant them should act with caution and due regard to the principles and procedures relating to the grant of relief on a without notice basis (see for example Young v Young [2012] 2 FLR 470 at paragraph 26 (ii) to (v). That case related to a passport order in a case seeking a financial remedy but the same approach is required to a case relating to the alleged abduction of a child or other proceedings relating to a child).

 

Nothing at all to disagree with there.

The Judge was perturbed that an application had been made that was not  constructed as well as it ought to have been. He reminded the applicant’s counsel of a valuable  previous authority B Borough Council v S & Anor [2006] EWHC 2584 (Fam)   dealing specificially with how inappropriate it was for these applications to be made without notice without a great deal of care.

 

  1. General comment on without notice applications


37. There is a natural temptation for applicants to seek, and courts to grant, relief to protect vulnerable persons whether they are children or vulnerable adults. In my view this can lead (and experience as the applications judge confirms that it does lead) to practitioners making without notice applications which are not necessary or appropriate, or which are not properly supported by appropriate evidence. Also there is in my view a general practice of asking the court to grant without notice orders over a fairly extended period with express permission to apply to vary or discharge on an inappropriately long period of notice (often 48 hours). It seems to me that on occasions this practice pays insufficient regard to the interests of both the persons in respect of whom and against whom the orders are made, and that therefore on every occasion without notice relief is sought and granted the choice of the return date and the provisions as to permission to apply should be addressed with care by both the applicants and the court. Factors in that consideration will be an estimation of the effect on the person against whom the order is made of service of the order and how that is to be carried out.

38. Inevitably on a without notice application the court hears from only the applicant. Good practice, fairness and indeed common sense demand that on any such application the applicant should provide the court with:

i) a balanced, fair and particularised account of the events leading up to the application and thus of the matters upon which it is based. In many cases this should include a brief account of what the applicant thinks the respondent’s case is, or is likely to be,

ii) where available and appropriate, independent evidence,

iii) a clear and particularised explanation of the reasons why the application is made without notice and the reasons why the permission to apply to vary or discharge the injunction granted should be on notice (rather than immediately or forthwith as in the standard collection and location orders) and why the return date should not be within a short period of time. As to that I accept and acknowledge that a reference to notice being given if practicable, or for a short period of notice (say 2 working hours or just two hours if a week end or holiday period is imminent), may often provide an appropriate balance to avoid a sequence of effectively without notice applications, and that in some cases a longer period of notice may be appropriate, and

iv) in many cases an account of the steps the applicant proposes concerning service, the giving of an explanation of the order and the implementation of an order. This is likely to be of particular importance in cases such as this one where emotional issues are involved and family members of a person who lacks capacity are the subject of the injunctions and orders. In such cases, as here, information as to those intentions are likely to inform issues as to the need for, and the proportionality of, the relief sought and granted

39. As to point (ii) I pause to mention that in my view it is surprising and disappointing how many times a without notice application for relief is made in the Family Division based only on largely unparticularised assertions by one side of serious allegations without any third party material to support them, or more generally the basis for the relief sought. I appreciate that in many instances there is a very real urgency and there will not be third party evidence of allegations of abusive behaviour that are readily available but in others there will be. A classic example, which occurs regularly, is that an applicant who seeks a return of children to his or her care fails to provide any third party evidence (e.g. from a school, a GP or records in their possession) to confirm that he or she is indeed the primary carer of the relevant children.

40. Guidance has often been given on the information to be provided and the procedure to be followed in seeking without notice relief (see at first instance Re S (a child) (ex parte orders) [2001] 1 WLR 211, [2000] 3 FCR 706, W v H (ex parte injunctions) [2000] 3 FCR 481 (by analogy X Council v B (Emergency Protection Orders) [2005] 1 FLR 341 and Re X (Emergency Protection Orders) [2006] EWHC 510 (Fam)) and in the Court of Appeal Moat Housing v Harris [2005] 2 FLR 551 in particular at paragraphs 63 to 69, and see also the notes to CPR Part 25 and the practice note now reported at [2006] 2 FLR 354).

41. Naturally I endorse that guidance and do not seek to add to it save to emphasise the points made above and to record my own observations that practitioners (a) too regularly do not follow and implement that guidance, and (b) by such failure show an insufficient appreciation of the exceptional nature of without notice relief and the impact it has (or potentially has) on the rights, life and emotions of the persons against whom it is granted.

42. As to this I acknowledge that the courts must take part of the blame for such failures by granting relief without notice in cases when (a) the guidance has not been followed, and (b) the impact on the person against whom the relief is granted could be considerable.

43. I add that additionally there is a need (a) to comply strictly with undertakings given at the time the order is made, and (b) to keep full and proper records of what is put before the court and said to the court. This should include a record of the times of the hearing so that a transcript can be more easily obtained. The availability of a transcript does not however reduce the duty of those applying for without notice relief to keep a full record of what the court was shown and was told.

 

Having quoted those passages, the Judge then indicated that he fully agreed with them    and added to them

 

16. As well as endorsing the guidance set out above, there are three additional comments I would make:

(1) If information is put before the court to substantiate a without notice order, it should be the subject of the closest scrutiny and, if the applicant is not present in person to verify it, be substantiated by production of a contemporaneous note of the instructions. If that is not available, there may need to be a short adjournment to enable steps to be taken to verify the information relied upon.

(2) If additional information is put before the court orally, there must be a direction for the filing of sworn evidence to confirm the information within a very short period of time. If that direction had not been made in this case, the passport order would have been executed when the grounds for obtaining it were simply not there. That would have involved a gross breach of the defendant’s rights, quite apart from the court having been given misleading information.

(3) Lastly, leaving the scrutiny that the court should give to without notice applications to one side, it is incumbent on those advising whether such an application is justified to consider rigorously whether an application is justified and be clear as to the evidential basis for it.”

 

 

 

All very good points, I have been on the other end of a number of ex parte applications, and when you come to Court and outline what the other side of the story is, you often see the Judge’s expression become “Well, if I had known THAT…”  

 

And these applications are of course, an immensely serious interference with someone’s liberty and free movement, and it is therefore important that a great deal of care is taken, both by the advocate presenting the case and by the tribunal determining it.

 

 

The long and short of this case was that the applicant’s representatives ended up not just not getting the order, but with something far, far, far worse than that. Probably the worst outcome you can ever get if you send counsel off to Court to make an application.  

  1. As mentioned in B Borough Council v S, I recognise that there is a natural temptation for applicants to seek, and for courts to grant, relief to protect the vulnerable, and, I add, to find children who it is alleged have been abducted. But this temptation, and the strong public interest in granting such relief, does not provide an excuse for failures to apply the correct approach in law to such applications. Indeed, if anything, the strong public interest in providing such relief and its impact on the subjects of the relief and their families mean that the correct approach in law should be followed and so the sound reasons for it, based on fairness, should be observed. Naturally this applies to all without notice applications, but it can be said to have particular importance when Tipstaff orders are sought and granted because they can found a deprivation of liberty without further court involvement, and they do restrict freedom of movement.
  1. In my view, a practice of granting and continuing Tipstaff orders in Hague Convention cases as a matter of course and without insisting on properly prepared, particularised and updating evidence is to be deprecated.

 

AND

  1. It seems to me that if such failures are to be avoided in the future there is a need for judges:

i) to refuse to make without notice orders if the established principles and procedures are not applied (I and some other judges do this), and

ii) to treat such failures as negligent and thus as a foundation for the exercise of discretion to make a wasted costs order.

  1. Sadly, the first course alone has not resulted in general improvement and it is to be hoped that when the second course is added it will. But, I acknowledge and confirm that this promotional effect is not a ground for making the order rather it is a potential product of making such an order applying the approach set out in Ridehalgh.

 

 

And more chillingly for advocates

 

  1. Generally, a litigant has to take the consequences of such behaviour and look to his advisers for recompense but I have concluded that the application for costs against him should be refused, because:

i) the point that the shortcomings in the presentation of his case by his advisers is a reflection of endemic failures of family practitioners and courts means that his conduct should not be categorised and reprehensible or beyond the band of what is reasonable (see paragraph 80 hereof), and

ii) the policy and merits arguments referred to in paragraphs 82 to 84 support no such order being made.

 

 

Thus it wasn’t the client who was going to be hit for costs, but rather his representatives

 

 

  1. Also, in my view:

i) the merits and policy arguments referred to in paragraphs 82 to 84 above, and

ii) the point that the father’s solicitors are unfortunate to be singled out when their failures to comply with the principles and procedures relating to without notice applications are widespread in the Family Division and were not picked up by a number of judges,  warrant reductions in the costs to be awarded as wasted costs.

  1. Taking the above into account, in respect of the costs schedule up to the hearing on 10 September 2012, I make a wasted costs order against the father’s solicitors in the sum of £18,000 (to include VAT).

 

The Judge had actually knocked quite a bit off the costs to reflect that this was a warning shot across the bows and that the particular advocates involved had not been worse in their failings than many other cases.  But implicit in that is “woe betide”

 

I suspect that there may well be some family barristers who are having gentle chats with their clerks about whether the cab rank rule means that they need to take cases where they are liable to be personally stung for costs of £18,000 plus, and frantic calls to the RCJ list office to determine tribunals might well be being made.

 

I do wonder also whether sufficient weight has been given here to the very nature of the applications – a parent believes their child has been abducted, the child is missing, information is sketchy and develops piecemeal, and often the most strikingly important details emerge during the course of the day and are not necessarily reduced to affidavit form in advance. I also wonder how much better such cases will be presented in the High Court when those advocates who are skilled and accomplished at presenting them no longer want to bear the personal risk of doing so…