England and Wales Family Court Decisions (other Judges)

This judgment was sent to the parties on 24th March 2017.

 

The judgment is being distributed to the father and to the local authority on the strict understanding that the anonymity of the children, their sibling and the adult members of their family, including their foster carers and their adoptive parents, must be strictly preserved. All persons, including representatives of the media, must ensure this condition is complied with. Failure to do so will be a contempt of court.

 

 

Confidential case serial numbers

IN THE FAMILY COURT

Bournemouth Combined Court

24th March 2017

HHJ Meston Q.C.

Designated Family Judge

 

 

Re R and E (children)

HHJ Meston Q.C.:

Further judgment

1.      This further judgment deals with applications for costs and other matters consequential upon the decisions contained in my judgment sent to the parties in February 2017   relating to the father's claims against the local authority for damages.  I held that the local authority had acted unlawfully in allowing the children to be known by the surnames of their prospective adopters in advance of the making of adoption orders. I decided that a declaration to that effect was sufficient and that an award of damages was not justified. I deferred the finalisation of the order until issues of costs had been resolved.

                 

      The costs claims.

2.      The father applies for costs of £5,000 against the local authority.

 

3.      In his e-mail of 17th June 2016, in which he claimed damages amounting to £60,000 for himself and the children, he also claimed £5,000 for costs; but this appeared to relate principally to his unsuccessful application for leave to oppose the making of adoption orders rather than to his damages claim. He expressed this claim for costs as follows:

"To attending the Family Court at [xxxxx] to oppose the Adoption Applications in respect of my two eldest daughters R & E (Court Reference Numbers [xxxxx]), including travelling time and mileage, costs associated with the necessary administration with regards to preparing bundles for the Court and Counsel for D Council, researching the appropriate legislation with regards to case law and Family Court procedures and self representation at Court because D Council as a Public Authority violated Mr MG's Article 6 ECHR Rights as contained in the Human Rights Act 1998 by refusing to pay for him being represented by a Solicitor/Barrister so as to ensure a Fair Trial:-

£5,000 (Five thousand pounds)"

 

4.      In his later e-mail of 30th January 2017 he repeated his claim for £5,000 but in different terms:

"My Claim for Costs/Expenses is for the amount of £5,000 and I would appreciate either an immediate partial or interim payment from the Local Authority to my ….. bank account ….

The claim is to cover my time and travelling to the Court of Appeal and the Supreme Court in London, the failure of the Local Authority to disclose their statements and evidence for disclosure by Orders of the Court, for the time and administration expenses that I have incurred in preparing a number of bundles and supplementary bundles, initiating research measures during the 2 day public Trial on 3rd and 4th January 2017 and for the attendance at Court on a total of 4 occasions recently.  As the Court will be aware, I attended for a 1 day trial date on 10th November 2016 when the main witness Ms C for the Local Authority was not able to attend and the Barrister attempted to immediately withdraw Ms C as the main witness after being given a copy of the Supplementary Bundle I had prepared."

 

5.      The defendant local authority apply for costs in the sum of £4,035 based on the father's rejection of a Part 36 offer. The Part 36 offer of payment of £1,500 was made on behalf of the defendant on 6th December 2016. The offer was rejected by the father in an e-mail of 9th December 2016.  In doing so he referred to the amounts which he had claimed in his e-mail to the Chief Executive of the local authority. He said that he looked forward to the trial listed for two days.  He added that he and his family intended to make further claims for damages.  There was no counter-offer to settle his claim.

 

6.      The claim proceeded to trial and the father failed to recover any damages. Accordingly the defendant would be entitled to costs in respect of the damages claim from the date upon which the period for acceptance expired. The defendant local authority seek costs from the rejection of the offer on 9th December 2016 until 27th January 2017 when the proceedings ended with the decision of the court.

 

7.      However the court did make a declaration that the defendant had acted unlawfully, about which the local authority had not made any concession. It is necessary to consider the effect of that in the context of the applications for costs.

 

The applicable principles

8.      The governing principles have been set out in 2 recent decisions of Cobb J who held that human rights claims connected to public law cases concerning children were governed by the Civil Procedure Rules, not the Family Procedure Rules, and that given that the CPR applied to human rights claims, the regime of Part 36 also applied, as did the costs regime in Part 44. Thus in Re CZ (A Child) (Human Rights Claim: Costs) (CZ v. Kirklees) [2017] EWFC 11 at paragraph [9] Cobb J set out important procedural points including

 "v) Costs of the declaration and/or damages claim under the HRA 1998 claim are awarded under the Civil Procedure Rules 1998; these rules provide (per CPR 44.2 (2) (a)) that within the court's discretion, 'the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party', subject to the provisions set out elsewhere in that rule; the provisos within Part 44 are important, and include consideration of litigation conduct;"

In the later decision of Re SW & TW (Human Rights Claim: Procedure)(No.1) [2017] EWHC 450 (Fam) Cobb J said at para [47]:

            "I made the point in CZ v Kirklees at [9] that in cases of this kind:

"… a careful and realistic eye has to be kept on proportionality of the process by which relief is sought, and on outcome." 

 

9.      Accordingly it is necessary first to consider the general rule in CPR rule 44.2 and which was the "successful party" in these proceedings, and then to consider the relevant factors under CPR 44.2(4) and (5) and the effect of the Part 36 offer which was rejected.

 

      Relevant considerations in this case

10.  The father achieved no more than partial success in his claims:

(i) He brought claims on behalf of both himself and the children without a litigation friend being appointed for the children either before the claim was issued or later when the need for a litigation friend was pointed out to him. After he had been given a chance to rectify the position the claim on behalf of the children was dismissed.

(ii) He was successful in obtaining a declaration, but it is a declaration of limited value to himself and of negligible value to the children.

(iii) He was wholly unsuccessful in his monetary claims for damages, for reasons that are set out in the main judgment. Most importantly, the wish expressed by the children to be known by the surname of the prospective adopters was largely brought about by the father's own actions.

 

11.  The father refers to "the failure of the Local Authority to disclose their statements and evidence for disclosure by Orders of the Court".  There was delay by the local authority in providing their witness statements and disclosure. On 14th July 2016 the court directed that this evidence should be served by 12th August 2016. However, the statements and disclosure were not provided until 19th October 2016, just before a directions hearing on 20th October 2016. At that hearing on 20th October 2016 counsel for the local authority explained and apologised for the delay. As it appeared that the father had not been prejudiced or caused expense by the late compliance by the local authority I decided to impose no sanctions. Directions were then given for the listing of the trial on 10th November 2016 (with one day allowed). That gave the father ample time to consider the small quantity of material disclosed and relied on by the local authority.

 

12.   The trial did not get underway on 10th November 2016 because (a) the local authority's main witness, the social worker Ms C, had become unwell and was unable to attend; and (b) much of the time allowed for the hearing was taken up with consideration of the witness summonses that had been issued by the father.  It became apparent that a two-day trial would be required. The directions I then gave included the following:

"6. Costs in the case. The application by Mr M G for payment of his costs and expenses (including an interim payment) is adjourned until determination of his claim in these proceedings. It is recorded that his application for costs may include any costs arising out of late compliance by the local authority with directions for the filing and service of statements of evidence and for disclosure."

 

13.  I remain of the view that the local authority's delay in providing evidence does not require a costs sanction.

 

14.  In a case such as this in which there has been a Part 36 offer and the claimant has succeeded in part of his claim (i.e. by obtaining a declaration) but failed on another part (i.e. the damages claim) it is appropriate first to ask what order for costs would be appropriate if there had been no Part 36 offer (Walsh v. Shanahan [2013] EWCA Civ 675; [2013] 5 Costs L.O. 738)

 

15.  On an overall view of the proceedings applying CPR rule 44 factors - and before considering the consequences of the Part 36 offer - I would not order the recovery of any costs by the father despite his success in obtaining a declaration. In any event, any costs order in his favour would be subject to the cap under CPR rule 46.5.  Of particular relevance is his conduct in the following respects:

(i) The claims for damages advanced and pursued by the father of £20,000 for himself and the same amount for each of the children were unrealistic as to the amounts sought, and became more so when the father added a late claim for exemplary damages.

(ii) He sought to add an application for the adoption orders to be set aside, an untenable application without any prospect of success.

(iii) These proceedings appear to have become part of a determined campaign by the father against the local authority.  He pursued his claims by making serious, wide-ranging and essentially unjustified allegations of bad faith and misconduct against the local authority and against individual employees of the local authority; and he remained quite unwilling to accept the explanations and evidence of the local authority as to how and why the children were allowed to use the surname of their prospective adopters.

(iv) He sought inappropriate witness summonses against the local authority's Chief Executive, head teachers and adoptive father. Applications to set aside the summonses issued were thereby prompted. This took up time.

(v) He did not use any internal complaints procedure (to which I had referred in paragraph 125 of my judgment of 14th July 2016 – after having considered what was said in Anufrijeva and Another v. Southwark London Borough Council [2003] EWCA Civ 1406, [2004] QB 1124). This may be a point of limited relevance as I do not know if any such potential alternative procedure was otherwise drawn to his attention or suggested by the local authority.

16.  On the basis of the above considerations alone I would make no order for costs. However, it is necessary to go on to consider the effect of the Part 36 offer. CPR rule 44.2(4) expressly leaves out of account Part 36 offers, essentially because Part 36 contains a "self contained procedural code about offers to settle" (CPR rule 36.1).

 

17.  The father failed to obtain a judgment more advantageous in money terms than the local authority's Part 36 offer, and thus under CPR rule 36.17 the court must order that the local authority are entitled to their costs unless the court considers it unjust to do so. Under Rule 36.17(5) "In considering whether it would be unjust to make the orders referred to in paragraphs (3) and (4), the court must take into account all the circumstances of the case …."

 

18.  Although I have not received argument on the point, I have to consider whether it would be unjust to make a full order for costs in favour of the local authority from the date of the father's rejection of the offer because the court did grant a declaration, albeit of a limited nature and without the damages he sought.

 

19.  It appears that the father rejected the Part 36 offer because he wanted to pursue his claims for substantially higher sums and because also he wanted to use the two days in court that had been listed for the hearing of his claim.  Although doubtless the father now feels vindicated by the declaration made by the court, his approach to the case and his hostile attitude to the local authority suggest that he would not have been satisfied even if the Part 36 offer of £1,500 had been accompanied by an offer of an apology by the local authority.

 

20.  Because the father did obtain a declaration I consider that it would be unjust to order the full amount claimed by the local authority. I will order that there should be no order for costs up to 9th December 2016, and in respect of the period thereafter the claimant should pay 75% of the defendants' costs (which I will assess in the sum claimed in the defendants' schedule which has not been challenged). As the claimant father is without means the order will provide that it is not to be enforced without leave of the court.

 

Other consequential matters

21.  I dealt with other consequential matters and requests in the main judgment.  Since then the father has asked for a transcript at public expense of the hearing on 27th January 2017 when I informed the parties of the decisions of the court. He appears to wish to have transcripts at public expense of that hearing, and also of the main hearing, not for the purposes of an appeal (for which he could use the written judgment already provided), but to use for a possible application for judicial review, to support criminal investigations against the local authority officers and to support other complaints against them to regulatory bodies.  On my behalf the court has informed the father that I was not willing to authorise transcripts of the hearings at public expense for which there did not appear to be any necessity. If the police, the CPS, the HCPC or any other body or person require a transcript the request can be reconsidered together with the question of responsibility for the costs incurred in preparing a transcript. In the event of an application for judicial review, for which leave would be required, an application for a transcript would depend on a direction by the Administrative Court that a transcript is necessary.

 

22.  The court has not received submissions as to the request for disclosure of the judgment to the police (paragraph 158 of the main judgment). The court has since received a further request from the police. The court will now provide a copy to the police on condition that it should be used only for the purposes of a criminal investigation and shall not be disclosed by the police to any other person other that the Crown Prosecution Service without express permission of the court.

 

 

 

                                                                                    24th March 2017