England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SHEFFIELD DISTRICT REGISTRY
HER HONOUR JUDGE CARR QC
SE12Z00226

		Royal Courts of Justice Strand, London, WC2A 2LL
		6 February 2013

Lord Justice McFarlane:

1. In this matter Rotherham Metropolitan Borough Council ("the Local Authority") seek a wasted costs order against the firm of solicitors acting for parents in care and placement for adoption proceedings which have been before the High Court, Family Division (Sheffield District Registry) and, latterly, before the Court of Appeal. The application for wasted costs arises following this court's refusal to grant the parents permission to appeal the decision of the trial judge, HHJ Carr QC on 18^th June 2012, in which the judge refused an application to re-open a fact finding determination that she had conducted in 2010. It is the Local Authority's case that the conduct of the parents' solicitors, Brendan Fleming & Co, in preparing for and pursuing the application for permission to appeal amounts to "improper, unreasonable or negligent" litigation conduct sufficient to trigger this court's jurisdiction under Senior Courts Act 1981, s 51(6) to award wasted costs. The solicitor for the child, through leading counsel, also makes submissions which are highly critical of the conduct of the parents' solicitors, and are therefore supportive and in tune with those of the Local Authority, but the child's legal team leave the question of whether or not wasted costs should be awarded in their favour to the discretion of the court. It is, however, conceded that if a wasted costs order were justified in favour of the Local Authority, there would be no distinction between the authority's position and that of the solicitors for the child and the court would therefore be likely to make a similar order in relation to the child's legal expenses.
2. The application is firmly resisted by counsel on behalf of the parents' solicitors.
3. The short procedural background to the matter is that in the 2010 judgment HHJ Carr QC found that a significant number of fractures detected in a very young baby were not capable of explanation on benign medical grounds, but were, on the balance of probability, the result of non-accidental injuries inflicted on the child by one or other of his two parents. The hearing in June 2012 represented an attempt by the parents to persuade the judge to re-open the fact finding process on the basis of a change in medical understanding relating to rickets and brittle bone disease in particular following the decision of Mrs Justice Theis in the case of London Borough of Islington v Al Alas and Wray [2012] EWHC 865 (Fam). That application was refused by HHJ Carr QC. The parents issued a Notice of Appeal 51 days after the judgment was handed down, and therefore thirty days after the time for appealing had expired, on 8^th August 2012.
4. The application for permission to appeal first came before me at a without notice oral hearing on 19^th September. The primary application being made by the parents at that hearing was for the court to clarify whether or not they required the permission of the Court of Appeal before instructing a fresh expert in the case. At that hearing, for reasons which are fully set out in my earlier judgment of 19^th September 2012, I was persuaded that the way in which the medical argument was by then being put justified input by a nationally recognised specialist provided that the expert could furnish a preliminary report within 28 days. I therefore adjourned the application for permission to appeal so that it would be re-listed as soon as possible after the report had been received at a hearing of which the Local Authority and Children's Guardian would have notice so that the court could hear from all parties in detail on the question of whether or not permission to appeal should be granted.
5. Fortunately the chosen expert, Professor Nussey, was able to meet the court's tight deadline and the matter came back before me at a hearing attended by counsel for the parents and leading and junior counsel both for the Local Authority and the child on 1st November. For the reasons set out in the reserved judgment that I handed down on 16^th November (reference [2012] EWCA Civ 1477), I dismissed the application for permission. By that stage it was, however, apparent that the other two parties sought to raise serious criticisms of the conduct of the parents' solicitors and one or both of them wished to make a wasted costs order. I therefore adjourned those issues to a third oral hearing which has now taken place on 6^th December 2012.

Criticisms of the parents' solicitors

6. In the course of a detailed skeleton argument Mr Charles Prest, counsel for the Local Authority, sets out extensive criticisms of the parents' solicitors' actions which can be summarised into the following list:

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 16^th October. The information withheld included a note of the 19^th September hearing, the letter of instruction to Professor Nussey, Professor Nussey's report (which had been received on 3^rd October), the progress report sent by the parents' solicitors to the Court of Appeal on 3^rd 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.

7. 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.
8. In addition to the criticisms made of the litigation actions in the period between 19^th September and 1^st 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.
9. Both the Local Authority and those representing the child invite this court to give comprehensive guidance on the approach to be taken by those who come to an oral without notice hearing seeking permission to appeal. Guidance is also sought upon the approach at appellate level to the instruction of an additional expert.
10. At the start of this hearing I made plain that I regarded it as neither wise nor appropriate for me as a single Lord Justice hearing a costs application following a short process ending in the refusal of permission to appeal to accede to that request by purporting to offer comprehensive guidance. Indeed, I question, as a matter of jurisdiction, what validity any such guidance might have. I therefore propose to determine the limited and fact specific issues that have been raised solely insofar as may be necessary to decide this specific application for wasted costs.

Wasted costs: the Law

11. The jurisdiction to make an order for wasted costs is founded upon Senior Courts Act 1981, s 51(6) and (7) which apply to proceedings in this division of the Court of Appeal (s 51(1)(a)). The relevant provisions read as follows:

"(6) In any proceedings mentioned in subsection (1), the court may disallow, or (as the case may be) order the legal or other representative concerned to meet, the whole of any wasted costs or such part of them as may be determined in accordance with rules of court.

(7) in subsection (6), "wasted costs" means any costs incurred by a party:

(a) as a result of any improper, unreasonable or negligent act or omission on the part of any legal or any other representative or any employee of such a representative; or

(b) which, in the light of any such act or omission occurring after they were incurred, the court considers it unreasonable to expect that party to pay"

12. It is common ground between the parties that the leading authority remains the Court of Appeal decision in Ridehalgh v Horsefield [1994] 3 All ER 848. A leading modern statement of the law is that in Harrison v Harrison [2009] EWHC 428 (QB). The head-note in Ridehalgh confirms that the court, in exercising its jurisdiction to ensure that litigants should not be financially prejudiced by the unjustifiable conduct of litigation by their or their opponents' legal representatives, would only make an order under s 51(6) of the l981 Act if it were satisfied that the conduct characterised as "improper, unreasonable or negligent" directly caused the wasted costs complained of, and would be astute to safeguard against wasted costs orders becoming a back-door means of recovering costs not otherwise recoverable against a legally aided or impoverished litigant. In the course of the leading judgment Sir Thomas Bingham MR (at page 861) turned to the definition of "improper, unreasonable or negligent" in these terms:

"In our view the meaning of these expressions is not open to serious doubt.

"Improper" means what it has been understood to mean in this context for at least half a century. The adjective covers, but is not confined to, conduct which would ordinarily be held to justify disbarment, striking off, suspension from practice or other serious professional penalty. It covers any significant breach of a substantial duty imposed by a relevant code of professional conduct. But it is not in our judgment limited to that. Conduct which would be regarded as improper according to the consensus of professional (including judicial) opinion can be fairly stigmatised as such whether or not it violates the letter of a professional code.

"Unreasonable" also means what it has been understood to mean in this context for at least half a century. The expression aptly describes conduct which is vexatious, designed to harass the other side rather than advance the resolution of the case, and it makes no difference that the conduct is the product of excessive zeal and not improper motive. But conduct cannot be described as unreasonable simply because it leads in the event to an unsuccessful result or because other more cautious legal representatives would have acted differently. The acid test is whether the conduct permits of a reasonable explanation. If so, the course adopted may be regarded as optimistic and as reflecting on a practitioner's judgment, but it is not unreasonable.

The term "negligent" was the most controversial of the three….

(1) as already noted, the predecessor of the present Order 62, rule 11 made reference to "reasonable competence". That expression does not invoke technical concepts of the law of negligence. It seems to us inconceivable that by changing the language Parliament intended to make it harder, rather than easier, for courts to make orders.

(2) since the applicant's right to a wasted costs order against a legal representative depends on showing that the latter is in breach of his duty to the court it makes no sense to superimpose a requirement under this head (but not in the case of impropriety or unreasonableness) that he is also in breach of his duty to his client…

In adopting an untechnical approach to the meaning of negligence in this context, we would however wish firmly to discountenance any suggestion that an applicant for a wasted costs order under this head need prove anything less than he would have to prove in an action for negligence."

13. Sir Thomas Bingham stresses that the threshold in section 51 will not be crossed simply because the lawyer acts for a party who pursues a claim or a defence which is plainly doomed to fail. Finally, in this context, the Master of the Rolls concluded:

"It is, however, one thing for a legal representative to present, on instructions, a case which he regards as bound to fail; it is quite another to lend his assistance to proceedings which are an abuse of the process of the court.

Whether instructed or not, a legal representative is not entitled to use litigious procedures for purposes for which they are not intended, as by issuing or pursuing proceedings for reasons unconnected with success in the litigation or pursuing a case known to be dishonest, nor is he entitled to evade rules intended to safeguard the interests of justice, as by knowingly failing to make full disclosure on ex-parte application or knowingly conniving at incomplete disclosure of documents. It is not entirely easy to distinguish by definition between the hopeless case and the case which amounts to an abuse of the process, but in practice it is not hard to say which is which and if there is doubt the legal representative is entitled to the benefit of it."

14. In Harrison v Harrison Mackay J clarified the need to establish causation between the alleged acts or omissions of the opposing lawyer and the expenditure of costs on the part of the applicant for a wasted costs order:

"22. What is plain from the tenor of [Ridehalgh v Horsefield] is this: this is not a punitive nor a regulatory jurisdiction but a compensatory one and as a prerequisite persons seeking its exercise must show that the conduct has caused them loss."

Response on the part of the parents' solicitors

15. Mr Michael Shrimpton, acting directly on the instruction of the parents' solicitors, makes detailed submissions designed to disclaim and/or avoid the allegations that have been made and, more generally, asserts in each case that, even if it is found that the solicitors have acted in a manner that is worthy of criticism, their conduct has not led to the expenditure of any additional cost on behalf of those who seek a wasted costs order. I propose to take each of matters raised against the solicitors in turn. In doing so I will provide some more detail of what is said before setting out the core of Mr Shrimpton's response.
16. Before going to the points of substance it is right to record that, in so far as earlier documentation submitted on behalf of the parents had sought to criticise the professional role of the previous children's guardian, Mrs Krysia Parry, Mr Shrimpton was plain that he now had clear instructions to withdraw unreservedly each of those critical comments.

a) Lack of full and frank disclosure at first without-notice hearing

17. The bundle prepared for the court by the parents' solicitors for the first hearing contained neither the 2010 fact finding judgment nor the expert reports upon which HHJ Carr QC had relied. Mr Prest referred to the guidance given by Munby J (as he then was) in Re S (ex parte orders) [2001] 1 FLR 308. The judgment in Re S contains thirteen paragraphs which summarise the relevant legal principles and practice applicable to without notice applications for an injunction in the Family Division. Of particular note are the need for the fullest, most candid and frank disclosure; the obligation to bring to the attention of the respondent, at the earliest practicable opportunity, the evidential and other materials put before the court when a without notice injunction is granted; an account to the non-attending party of what occurred at the hearing and what documents were submitted to the court; the obligation upon the applicant's legal representatives to respond forthwith to any reasonable request by the other party for copies of materials read by the judge or information given at the hearing and, finally, the provision of a proper note of what occurred at the hearing to the non-attending party.
18. To these criticisms Mr Shrimpton makes two basic responses:

a) The application being made on 19^th September was not, in fact, for leave to instruct an expert but simply to obtain guidance from the court as to whether an application for leave to instruct an expert needed to be made and, if so, whether it should be on notice to the other parties;

b) In any event the guidance in Re S and other cases is applicable to the Family Division but not to the Court of Appeal.

19. Mr Shrimpton's first reason requires further elaboration. 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."

20. Mr Shrimpton 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 19^th 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 Shrimpton tells me would have been on notice to the other parties, should be made.
21. I confess that I am at a loss to understand that submission and ask, rhetorically, how Mr Shrimpton and Brendan Fleming and Co 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.
22. 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.
23. Turning to Mr Shrimpton's second point, whilst it is of course correct that the guidance in Re S was focussed upon first instance without notice applications for injunctions in the Family Division, the basic requirement on any litigant to be open with the court from whom they seek relief at a without notice hearing must be applicable across the board. Indeed, it was explicitly endorsed by Sir Thomas Bingham in the passages from Ridehalgh to which reference has already been made.
24. I therefore do not accept either of Mr Shrimpton's submissions on this point. It was incumbent upon the parents' legal advisors to furnish this court with the core relevant material including the judge's fact finding judgment of 2010 and the expert section in the bundle. Further, it is astonishing to be told in the course of the present hearing that the solicitors had not even furnished Mr Shrimpton with the fact finding judgment until after the 19^th September hearing had taken place. The solicitors, who had been instructed for some four months prior to that hearing, and who had themselves mounted the detailed application before HHJ Carr QC to re-open the fact finding process, were plainly in possession of the 2010 judgment and very well acquainted with it.
25. In the event, however, I do not consider that the parents' solicitors errors in this regard are causative of any wasting of cost on the part of the other two parties. Whatever were the applicants' intentions for the 19^th September hearing, I treated it as a full application for leave to instruct a fresh expert. On the basis of the way in which the medical argument was marshalled by Mr Shrimpton on that day I was persuaded to grant leave for the instruction of Professor Nussey. I had sufficient understanding of the medical issues in the case from the very full judgment of HHJ Carr QC in 2012. Having now read the 2010 judgment and the expert bundle, and whilst understanding the points that are made, it remains my view that I would nevertheless have granted the parents permission to instruct Professor Nussey to look at the novel manner in which Mr Shrimpton sought to configure the symptoms and medical reasons to support his potential alternative thesis. My primary and overriding aim at that time was to avoid delay for the child. I therefore contemplated, but then ruled out, delaying a decision on instructing an expert by setting up an on notice hearing to the other parties on that point. It follows that if the parents' legal advisors had approached matters properly, the outcome would, in my view, have been the same.

b) Misleading the court as to the time available for case preparation

26. Mr Shrimpton effectively accepts the point that the solicitors had been instructed for some eighteen weeks prior to issuing the Notice of Appeal and any plea by them to the effect that they had "a limited time" to prepare the case is hard to sustain. I agree. It does not, however, appear that any adverse consequence in terms of wasted costs flows from this mis-statement of the position. Neither did it affect my decision to permit the instruction of Professor Nussey.

c) Failure to disclose material from the 19^th September hearing to the Local Authority and Child's solicitors in a timely manner

27. At paragraph 6(c) I have listed the important material that the other parties claim should have been disclosed to them immediately after the 19^th September hearing and well before the date of actual disclosure, which was 16^th October.
28. Whilst Mr Shrimpton submits in his skeleton that there was no reason why his instructing solicitors could not have given information as to the 19^th September hearing to the other parties after that hearing had concluded, the apparent understanding and mind set of the solicitors is evidenced by an e.mail sent by them on 16^th October in response to a request for information. The e.mail reads:

"We are currently in the preliminary stages of making an application for permission to appeal the fact finding of Lord Justice McFarlane (sic). It is our understanding of the Civil Procedure Rules that, since serving the Appellant's Notice, we are not expected to serve any further documents on the other parties until permission to appeal has been given. Once permission is given we will be providing you with the appellant's bundle filed to date, the report of Professor Nussey and we will agree an appeal bundle for the full appeal hearing.

We confirm that Professor Nussey has now provided a report which has been filed with the Court of Appeal for consideration of the application for permission. Should permission to appeal be refused, then the appeal process will come to an end and the other parties will be immediately notified."

Whilst it is correct that soon after that e.mail was sent the solicitors apparently consulted their note of the hearing of 19^th September and looked at the order made by the court and thereafter immediately changed their stance to reflect the fact that the court had directed full involvement of the other parties at the next hearing, it remains the case that until that moment, some four weeks after the 19^th September hearing, the solicitors maintained the understanding reflected in the e.mail to which I have made reference.

29. I repeat that it is not my intention in this judgment to give comprehensive guidance as to the approach to be taken in without notice applications for permission to appeal. That said, the specific orders in this case made it plain that the court expected the other parties to be fully aware of and involved in this permission application, including having the scrutiny of any material flowing from the instruction to Professor Nussey. Ms Delahunty submitted that the privilege of instructing an expert in family proceedings comes with the responsibility of transparency, proportionality and neutrality; in principle that submission is entirely sound.
30. It is also relevant to note that CPR, PD52C, para 16, with effect from 1 October 2012, requires that, where the court has directed a respondent to attend an oral permission hearing, the appellant must supply the respondent with a copy of the skeleton argument 'and any documents to which the appellant intends to refer'.
31. The failure to act in a co-operative and open way with the other parties is not seriously defended by Mr Shrimpton in his submissions. It was, in my view, a serious and gross failure and betrays an attitude on behalf of the parents' solicitors which sought to maintain and capitalise upon some perceived tactical forensic advantage that they had gained by obtaining the court's leave to instruct an expert at a without notice hearing. Such an attitude can have no place in family proceedings. In common with the full Court of Appeal, I agree with Thorpe LJ in Re McC that the approach to first instance family proceedings must by extension apply to the appellate process. The fact that these are appeal proceedings in my view does not significantly alter the need for openness, co-operation and candour between the legal representatives in a manner akin to that which is expected and required by the Family Procedure Rules 2010 and its supporting Practice Directions. One only has to contemplate a case where permission to instruct an expert is given, that expert report comes in to the appeal process, the Court of Appeal is then persuaded to allow the appeal which inevitably leads to a re-opening of the fact-finding determination. At any re-opened process the "new" expert's report will fall to be considered alongside other expert material which has been prepared in accordance with the FPR 2010. It can be of no benefit to the child, the court and, more particularly, the party who has sought to adduce the new evidence, for the procedural integrity and validity of that new evidence to have been in some way compromised by the very sort of process that the FPR 2010 is intended to prevent and which the parents' solicitors undertook in this case.
32. Despite the criticisms that can properly be levelled at the solicitors over their failure to disclose material promptly, or at all, between 19^th September and 16^th October, it is not apparent that any costs were 'wasted' on the part of the Respondents as a result. Mackay J makes plain in Harrison v Harrison that the is a compensatory rather than a punitive or regulatory jurisdiction. It would therefore be outside the court's jurisdiction to award costs against the parents' solicitors simply to mark the court's condemnation of their actions. In the circumstances these failures do not support an order against Brendan Fleming & Co for wasted costs.

d) Failure to furnish Prof Nussey with 2010 judgment and expert reports

33. It is accepted that Professor Nussey was sent neither a copy of the 2010 judgment nor the original bundle of expert reports when he was instructed to prepare his report. In contrast he was sent the parents' solicitors critique of the 2010 judgment. Mr Shrimpton's response on this point is that the Professor was shown the index to the original case bundle and indicated that he did not need to see this material. The FPR 2010, PD25A makes it plain that documents which are considered to be 'essential reading' are to be supplied to an instructed expert. It is not for the expert to determine, without sight of the documents, what is or is not essential reading. In an ordinary family case the list of essential reading will be agreed between the parties in accordance with the Practice Direction. Where, as here, the instruction is being made as a matter of urgency by one party without, at that stage, the involvement of the other parties it will be a matter of judgment for the instructing solicitor (in default of any direction from the court) to determine what is essential reading. In the present case I would regard the 2010 judgment and the modest clip of expert reports as very clearly being essential reading for a newly instructed expert. The failure of the parents' solicitors to send this material to Professor Nussey when instructing him was, in my view, a clear error of judgment.
34. In so far as this error is relevant to the application for wasted costs, once again my conclusion is that, in the event, no additional costs were incurred by the respondents as a result of this failure.

e) Failure to abandon application for Permission to Appeal upon receipt of Prof Nussey's report

35. To adopt the language used in Ridehalgh, what is said under the final head of criticism is that the case has been conducted by the solicitors on behalf of the parents in a manner which is 'unreasonable' in that, following receipt of Professor Nussey's report they have pursued a case which is not merely 'hopeless' but 'an abuse of the process'. In applying the test as set out by Sir Thomas Bingham MR, the court must not find against the solicitors simply because they were pursuing a case which was plainly doomed to fail and the court must afford the benefit of any doubt on the issue of abuse of process in the favour of the solicitor.
36. The essential context in which to mount an application under this head is established in this case by the fact that, despite the clear negative content of Professor Nussey's report, the parents nevertheless sought to persuade the court to grant permission to appeal, or adjourn for yet further reports, at the hearing which resulted in my judgment of the 16^th November 2012 ([2012] EWCA Civ 1477). For the reasons given in that judgment, I considered the parents' case to be misconceived and the argument mounted on their behalf to be untenable.
37. The context that I have identified does not, however, distinguish between a case which was hopeless and one which was unreasonably pursued in the sense that it was vexatious or designed to harass the other parties. As Sir Thomas Bingham puts it, 'the acid test is whether the conduct permits of a reasonable explanation'. A key question is whether the course adopted was optimistic and reflects on the practitioner's judgment; if so it will not be unreasonable.
38. As these hearings have unfolded, and in particular as this final hearing moved forward, it became very clear to me that the driver behind the presentation of the parents' case was their counsel, Mr Shrimpton, rather than the case presented being a manifestation of the actions and thoughts of the instructing solicitors. So much was obvious from the change in presentation between the hearing before HHJ Carr QC, which was conducted by Mr Brendan Fleming, and the first hearing before me which was undertaken by Mr Shrimpton. The case presented to HHJ Carr QC was an unfocussed, scattergun assault on some 26 different aspects of the case, whereas Mr Shrimpton's presentation was precisely focussed upon the points that became the subject of Professor Nussey's report and were then further finessed by counsel in his final attempt to obtain permission to appeal.
39. On a number of occasions in his skeleton argument and orally Mr Shrimpton informed the court that he 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' (skeleton argument paragraph 43(f)). Mr Shrimpton acknowledges that he is not an expert in child care cases and his full-frontal assault upon the legitimacy of the Family Procedure Rules 2010 in so far as they relate to experts, even at first instance, is evidence of his lack of understanding for and empathy with the approach to cases involving the welfare of children. Mr Shrimpton'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 Shrimpton 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 Shrimpton 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 Shrimpton had approach Ms Delahunty outside court to enquire if the children's guardian was going to support the application for permission to appeal.
40. 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 Shrimpton 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 Shrimpton was not in the frame and that it would by that stage be oppressive to alter the focus of the application to include him.
41. It follows that nothing in relation to the dogged pursuit of the application for permission beyond receipt of Prof Nussey's report can amount to conduct on the part of the solicitors which would justify the making of a wasted costs order.

Conclusion

42. Given the detail to which I have descended in relation to the individual aspects of the case that are relied upon in support of this application, it is not necessary to do more than record my overall conclusion in short terms. Despite litigation conduct which on occasions fell woefully short of that which is required in mounting a without notice application for permission to appeal in a child case where the Court of Appeal gives permission to the one party before the court to instruct a new expert, none of the errors that I have indentified have been causative of costs being wasted by either of the opposing parties. In relation to the decision to press on with the application following receipt of Professor Nussey's report, the solicitors and their lay clients seemingly acted upon the advice of counsel and their conduct therefore falls well short of that which would justify a wasted costs order.
43. At paragraph 19 of his skeleton argument Mr Prest summarised the local authority's case on wasted costs as being founded up the basis that:

a) The application for permission to appeal should have been withdrawn following receipt of Professor Nussey's report, thus obviating the need for a hearing on 1^st November 2012; and

b) The present hearing would have been unnecessary but for the way in which those acting for the parents had conducted the proceedings.

The claim based upon ground (a) falls away in the light of the conclusions that I have already expressed. In so far as ground (b) seeks to obtain a costs order where none of the specific errors alleged against the solicitors have themselves been found to justify an order for wasted costs, I consider that this ground is misconceived. To award the costs of this hearing in favour of the local authority where it has failed to achieve the substantive order for wasted costs for which it has applied would be wrong in principle.

44. In the circumstances I dismiss the application for a wasted costs order against the parents' solicitors.