QUEEN'S BENCH DIVISION
B e f o r e :
(sitting as a deputy High Court judge)
|ON THE APPLICATION OF SANDRA STEWART|
|- v -|
|(1) THE LONDON BOROUGH OF WANDSWORTH|
|(2) THE LONDON BOROUGH OF HAMMERSMITH AND FULHAM|
|(3) THE LONDON BOROUGH OF LAMBETH|
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"It shall be the general duty of every local authority (in addition to the other duties imposed on them by this Part)-
(a) to safeguard and promote the welfare of children within their area who are in need ..."
(a) has a geographical meaning and requires physical presence;
(b) while having a primarily geographical meaning, also has a secondary purposive meaning, under which one tests the issue by asking whether the child is within the area of responsibility of an authority, or
(c) has a purely purposive meaning.
MR KNAFLER: My Lord, I do not think we seek any further relief, save in relation to the costs.
THE DEPUTY JUDGE: Yes.
MR KNAFLER: And we would seek an order requiring Lambeth and Wandsworth to be jointly and severally responsible for our legal costs between themselves on a 50/50 basis, and we would ask for a detailed assessment of Ms Stewart's publicly funded costs, unless Hammersmith sought an order for costs against us, which may be unlikely. That is really all I want to say about the costs.
THE DEPUTY JUDGE: I am grateful, Mr Knafler.
MR GIFFIN: My Lord, may I just apologise that due to....
THE DEPUTY JUDGE: I did not mention it at the beginning on the ground that dealing with it with courtesy would just take more time and delay the next case further.
MR GIFFIN: My Lord, on behalf of Wandsworth I think I cannot resist Mr Knafler's costs application. I do not think it really matters whether - since one hopes that both Wandsworth and Lambeth are solvent - I do not think it matters whether we are ordered to pay half each or the whole lot jointly and severally with split between us. 50/50 seems - I would suggest that we are ordered to pay half each, it is easier.
So far as Hammersmith and Fulham are concerned, they have succeeded in this litigation and have been here as a consequence of those parties who argued that physical presence was not a requisite, namely the claimant on the one hand and Lambeth on the other. Wandsworth, of course, made no such argument, that is why there was common representation. I therefore seek on behalf of Hammersmith and Fulham, as against the claimant, the usual order against a legally aided party, that is an order for costs with the assessment of any liability postponed. But more materially, in practical terms I seek Hammersmith's costs against Wandsworth, which is an entirely normal order.
THE DEPUTY JUDGE: You mean Lambeth?
MR GIFFIN: I am so sorry.
THE DEPUTY JUDGE: Your Chinese wall is starting to fall down.
MR GIFFIN: I am grateful to your Lordship. Hammersmith's costs against Lambeth, which is an entirely normal order where a claim is being brought against two defendants, each of them, as it were, blames - it is the Sanderson order, more familiar in other contexts. There is no reason why, having been brought here just as much - that argument having been advanced just as much by Lambeth, we should not have our costs against Lambeth, indeed Mr Knafler made it entirely clear in argument, as did his solicitors before proceedings commenced, that ultimately, so long as they were got an assessment from someone they were not too concerned who it was. In other words, if Lambeth had not persisted in the argument against Hammersmith, Hammersmith would not have been here. My Lord, that is my submission on costs.
I would also be seeking permission to appeal on behalf of Wandsworth. Does your Lordship wish to hear briefly now why I would seek that or finish costs first?
THE DEPUTY JUDGE: Let me deal with costs first.
MR OLDHAM: My Lord, on the question of claimant's costs, through lack of instructions I am not in a position to make any submissions on matters at all. So I leave that matter in you Lordship's hands. Plainly, however, if your Lordship were minded to make the defendants pay the costs, then I would suggest it is 50/50 rather more on Lambeth, for the reasons my learned friend suggested in respect of Wandsworth.
As regards Hammersmith, I would suggest that as a matter of discretion and these factors should weigh, my Lord, in my submission in your discretion such as not to order us to pay Hammersmith's costs. First of all, we are not the reason for Hammersmith being here at all. Hammersmith are joined by the claimant, nothing to do with us.
Secondly, my Lord, there is something of an initial reluctance, at least for the court to order parties to pay two sets of costs in most cases and, taking a step back and lastly, my Lord, we are now found to have the obligation under section 17 with possible financial----
THE DEPUTY JUDGE: Why is two - oh two sets of costs, i.e. the claimant's and.... yes.
MR OLDHAM: And another defendants, my Lord.
And, as I say, taking a step back we have the obligation, as your Lordship has found under section 17, with the possible financial consequences to follow. Hammersmith do not. If we have to pay Hammersmith's costs then that simply adds an extra burden on an already strained position as far as resources are concerned.
My Lord, unless I can assist you further on costs, that is all I am going to say.
I too seek permission to appeal.
THE DEPUTY JUDGE: I----
MR KNAFLER: Does my Lord need any reply in relation to Hammersmith's application for costs, because that certainly is very strenuously resisted.
THE DEPUTY JUDGE: Then I do need----
MR KNAFLER: As the Form N461 and the skeleton both state, it mattered little to Ms Stewart which local authority was ultimately found responsible. In the pre-action correspondence and in the acknowledgement of service all three local authorities sought to place the burden of responsibility on the other local authorities in a perfect circularity. The only thing that any claimant can properly do in those circumstances is to issue proceedings in such a way as to bring all the relevant local authorities before the court so they can argue the matter out.
As far as concerns argument on the day in terms of the skeleton, we became involved partly because of Lambeth's complete silence in the run up to the litigation, but on the day simply to give assistance to the court, taking points mostly against Lambeth, for obvious reasons, but also making appropriate concessions in relation to Lambeth, in particular the concession that clearly no duty arose under section 17 prior to----
THE DEPUTY JUDGE: You mean Hammersmith.
MR KNAFLER: Hammersmith, prior to the actual homelessness. We did simply what we had to, bring the substantively (inaudible) parties before the court so they can slog it out. And therefore, in my respectful submission, the claimant should not be held responsible for Hammersmith's point, because the real point was between Hammersmith, Lambeth and Wandsworth.
THE DEPUTY JUDGE: Well, the claimants are entitled to their costs against Lambeth and Wandsworth, each should bear half the costs.
With regard to the application by Hammersmith and Wandsworth for its costs against the claimants and for costs against Lambeth----
MR GIFFIN: My Lord, I am sorry, it was just an application by Hammersmith.
THE DEPUTY JUDGE: I am grateful. All Chinese walls are dropping.
With regard to the application by Hammersmith for Hammersmith's costs against the claimants and for its costs against Lambeth, this was a case in which it might be said, as Mr Knafler has, that the three potential authorities all sought to place the burden elsewhere and that the claimant had no choice but to proceed against all of them. On the other hand, Hammersmith's arguments have prevailed.
In this case I believe that Hammersmith's costs should be borne in part by the claimant, on the usual terms for a legally assisted party, and in part by Lambeth, who also maintained that physical presence was not required and on which basis, indeed, they have resisted the duty all along and that it would be right for these costs to be borne on an equal basis.
So the order is that 50 per cent of Hammersmith's costs be borne by the claimant, on the usual terms for a legally assisted party, and 50 per cent of them be borne by Lambeth.
Mr Giffin, you want to apply for permission to appeal.
MR GIFFIN: My Lord, yes. So far as the - it is really the question of whether physical presence is a sufficient as well as a necessary condition. I say simply that it is an arguable point which is of some general importance. Your Lordship has heard the argument. It may also be that depending on exactly what the Court of Appeal says in A about the nature of section 17 duties, that may impact upon the matter and it would be right for Wandsworth to be able to consider whether it would wish to take this matter to the Court of Appeal, having had the opportunity perhaps to consider that outcome. That is really all I would say.
THE DEPUTY JUDGE: I am grateful.
MR OLDHAM: My Lord, I can only add that it is obviously a matter that is of concern countrywide and it is particularly a matter of (inaudible) areas.
THE DEPUTY JUDGE: Wandsworth and Lambeth have applied for permission to appeal. I think you must both go to the Court of Appeal for this.
In the case of Lambeth the appeal would be on the challenge to the necessary of physical presence which I do not think is arguable on the authorities as they are and for the reasons I have given in the judgment.
In the case of Wandsworth it is on the question of whether physical presence is sufficient as well as necessary. I consider that in view of the decisions in the earlier cases, Caddell and Salisbury & Pierre, and the meaning of the phrase in the various provisions that it appears in the Children Act, that this is also not an arguable point.
I am grateful to all of you.