England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
PRINCIPAL REGISTRY
(Mrs Justice Hogg)

		Royal Courts of Justice Strand London WC2 Friday, 4th October 2002

LORD JUSTICE THORPE:

1. There were wardship proceedings in the Family Division in relation to two girls: M, who was born in 1991, and S, who was born in 1994. They were cared for by their father for some years after their parents separated until he was tragically killed in a motor accident in Morocco in January 2001. That left the paternal grandmother and other members of the father's family in a position of responsibility and also in a position of control.
2. By that stage the mother was living in Belgium and not on good terms with the paternal family and not in very regular contact with the girls. She issued wardship proceedings obviously to bring before the court consideration of her claim to assume responsibility for the girls, given that she was the only living parent. There then followed proceedings with hearings in August, September, October, November and December 2001, in the later stages of which the grandmother issued competing applications under the Children Act. The final hearing was fixed before Mrs Justice Hogg, who heard the case over four long days, culminating in her conclusion, on 8th February 2002, that the girls must move to Belgium to be cared for permanently by their mother. She intended, of course, that there would be continuing contact to the paternal family.
3. 8th February was a Friday and the judge did not conclude until something like half past seven in the evening, so clearly the question of costs could not be dealt with that day. The judge therefore directed that there should be a further listing before her to settle the question of costs. That hearing took place on 12th March. At its conclusion the judge selected two of the interlocutory hearings, namely those on 24th and 30th October, as hearings for which the grandmother had to bear costs liability. She ordered the grandmother to pay 50 per cent of the mother's costs of each of those hearings. Turning to the final hearing, the judge concluded that the grandmother should pay 75 per cent of the mother's costs on the basis that she had acted unreasonably in a number of respects and that the consequence of her behaviour had been to extend what should have been only at most a one-day hearing into a four-day hearing. Finally, the judge said that the grandmother should pay all the costs of the costs hearing on 12th March.
4. Mrs Pope, who appeared for the grandmother, sought the judge's permission to appeal. Seemingly no order was drawn on that application but the judge completed the conventional form, saying that she granted leave to appeal the order in respect of the two hearings in October 2001 but that she refused permission in respect of the final hearing. She allowed this court to consider the argument that the grandmother should not have paid all the costs on 12th March since, had that costs argument immediately followed the final hearing, that too would have been capped at 75 per cent. So that decision constituted a case for this court.
5. The appellant was not satisfied with the limitation imposed by the judge and accordingly filed a notice of application for permission, seeking of course to constitute an appeal in respect of the judge's condemnation of the grandmother to pay three-quarters of the costs of the final hearing. That document is the only document that describes both the application for permission and the grounds of the appeal. Sections 7 and 8 raise a number of points. The first is that the grandmother was not herself in reality an applicant since all that she had issued in December was essentially supplementary to her defence of the wardship proceedings. Then a number of points were taken in relation to the Community Legal Service (Cost Protection) Regulations 2000, as amended, particularly in relation to regulation 5(3)(c).
6. The application for permission was, by an order of 30th May 2002, adjourned to be listed with the appeal. So today we have to decide whether the judge's permission should be extended, as well as deciding whether the grandmother should succeed on that part of the order for which permission was granted below.
7. Mrs Pope, who continues to represent the grandmother, filed a skeleton argument on 19th September in which she challenged the judge's discretionary decision that the grandmother was culpable in her conduct following the death of her son both within and without the proceedings. She set out the cases in which this court has confined the discretion of a trial judge in children's cases and she made extensive submissions criticising the judge's findings in relation to the grandmother's conduct. All those submissions fill the first eight pages of her skeleton. She then turned to the Regulations and made her submissions in relation to the Community Legal Service (Cost Protection) Regulations 2000, as amended.
8. Miss Ramsahoye, who also has represented the mother throughout, filed her skeleton on 1st October. In it she raised objection to the development of the argument to challenge the judge's discretion when there was not a word to that effect in the notice of application or the notice of appeal.
9. The last contribution has come from the Legal Services Commission. Written submissions have been received from Alison Macnair, a solicitor for the Commission at the Policy and Legal Department. She helpfully points out that both counsel have gone off the legal rails in their submissions in relation to the Regulations. They have essentially presented submissions as though the court were considering an application for costs against the Commission rather than an application for costs against a funded party which are governed by section 11(1) of the Access to Justice Act 1999.
10. An exploration of the reaction to this contribution from Alison Macnair has revealed that Mrs Pope broadly accepts the validity of Mrs Macnair's submission. From Miss Ramsahoye we have discovered that, although no application for costs was made against the Commission on 12th March, an application was issued on 11th June. That is a significant date because there is a strict time limit of three months from the date of the order in the court of trial during which any application for costs against the Commission has to be initiated.
11. It seems to be now generally agreed that, where an application for costs is made against a publicly funded party, the function of the trial judge is a somewhat limited one. The judge may decide whether as a matter of principle the conduct of the funded litigant attracts an order for costs and, if so, in what proportion. The trial judge may also go on to make an assessment of that liability in pounds and pence if in possession of the necessary information. The grandmother apparently did furnish some evidence as to her financial circumstances, but whatever it is cannot now be traced and Miss Ramsahoye has questioned whether an appropriate schedule of means was furnished to the judge. So inevitably the real decision as to how much in cash terms, if anything, the grandmother must pay in satisfaction of the order in principle and how much the Legal Services Commission should pay under the application lodged on 11th June is all for the costs judge to decide.
12. That having been ultimately established during the course of the exchanges, Mrs Pope has fallen back on the argument which Miss Ramsahoye challenges, namely her argument in relation to the exercise of discretion. Miss Ramsahoye is fully entitled to take objection to this late development of the grandmother's position. On the other hand, as a matter of reality, it would render the whole listing particularly futile if we did not entertain the argument. Accordingly, I favour weighing it for what it is worth, despite the fact that it was not properly set out in the notice of appeal.
13. It is really the area most fully covered in the judgment below. The judge introduced her review by noting that the mother had had to spend nearly £34,000 of her own money to carry the case to its successful conclusion. She had only been able to fund that by borrowing from her cohabitee and plainly, given their very straitened financial circumstances, it was, or approached being, a financial hardship case.
14. The judge then came on to consider the history of the litigation and then made her adverse findings. In relation to the period between the death of the father and the initiation of proceedings, the judge made some pretty clear findings. She held (at p.5 of her judgment) that:

"... the family and the grandmother failed the children, failed them in not trying to seek out their remaining natural parent."

She added:

"I think the way the family behaved, being the grandmother and her own daughter and son, was poor ..."

15. At p.6 of her judgment she made a finding about the grandmother's attitude to contact. She said:

"The grandmother throughout has been difficult about contact ..."

In relation to the hearings of October 2001 she said:

"Those costs were largely occasioned by the grandmother not putting the children's interests to the forefront of her mind ..."

16. Perhaps most damning was her finding in relation to adult responsibility for the children's dramatic change of attitude towards their mother, from being loving children to hostile. Of that the judge found:

"I am quite satisfied that these children had been persuaded to change in their reaction to their mother by the grandmother and members of her own family."

17. She summarised all this by saying:

"I have come to the view that the conduct exhibited by the grandmother was beyond that which I should accept in what one might call more normal litigation concerning the residence of children."

18. Mrs Pope says, in effect, that the judge made a determination which no judge could reasonably have made on the evidence. That is a particularly difficult submission to advance in this court. She says that the judge did not sufficiently allow for the fact that the grandmother spoke no English and was only a visitor from North Africa. She says that the judge really made a completely erroneous assessment of the grandmother's personality.
19. The reality is that the judge spent four long days on this case, during the course of which she had ample opportunity to make some assessment of the grandmother's responsibility and personality. How can we, who have never even seen the grandmother, presume to differ? This was perhaps a strong order. But, on the other hand, so too are the criticisms of the grandmother. It does not seem to me to be open to this court to differ from the broad conclusion reached by the judge, the effect of which will all be decided in due course by the costs judge.
20. I would have no hesitation in refusing the application for permission to appeal and also refusing the appeal itself.
21. MR JUSTICE BODEY: I agree.
Order: application for permission to appeal and appeal dismissed with costs; costs order made pursuant to section 11 of the Access to Justice Act 1999.