England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT

		Sitting at: Cardiff Civil Justice Centre 2 Park Street Cardiff
		29th January 2010

His Honour Judge Milwyn Jarman QC:

1. This is a claim for judicial review made by a claim form filed on 5 June 2009 by the claimant against the Child Maintenance and Enforcement Commission. A second defendant was named as Her Majesty's Court Service.
2. The claim sought to challenge the decision of the Commission to apply for a liability order and to press that application and, secondly, the decision of Barnstaple Justices to maintain those proceedings. The decision challenged was dated 15 May 2009.
3. Grounds and reasons were attached to that claim dated 4 June 2009. The background to the claim is that the claimant is the father of two qualifying children within the meaning of the Child Support Act 1991. They are now adults. Payments in respect of the liability in question are due to the Secretary of State for Work and Pensions and the Commission is, under the statute, enjoined to pursue arrears on the Secretary of State's behalf.
4. The grounds put forward a number of challenges to the decisions which I have mentioned. The first was, as set out in the grounds, that the limitation period for the recovery of such arrears had expired; secondly, that the decision to pursue these arrears by means of seeking a liability order from the magistrates court is an abuse of process; thirdly, that the decision was in breach of the duty under section 2 of the Child Support Act 1991 which requires the Commission to have regard to the welfare of any child affected by its decision; and finally, that the decisions were in breach of the claimant's rights under Article 6 and Article 8 of the European Convention on Human Rights and Freedoms 1950, as enshrined in this country by the Human Rights Act 1998.
5. The decision was refused on paper by HHJ Farmer QC and came before me initially in November of last year on an oral renewal. Following my hearing submissions by Mr Burrows on behalf of the claimant and Mr Buley on behalf of the Secretary of State and the Commission, I adjourned the question of permission to a rolled up hearing, and that is the hearing which has taken before me today. I gave permission to the Commission to file a witness statement dealing with what if any consideration has or will be given to the welfare of adopted children of the claimant. Since his marriage to his first wife, which union produced the qualifying children I have mentioned, the claimant has been married on two subsequent occasions. He has another child who now lives in Canada and two young children whom he and his present wife have adopted. I gave him permission to the claimant to file a further statement in response to any such statements by the Commission and made other directions.
6. On 6 November 2009 a statement was filed by Margaret Vasey, who was a debt and enforcement policy and litigation manager for the Commission. She has the current management coordination and liaison responsibility for the claimant's case against the agency. The statement was made, she said, to clarify the Commission's position in relation to whether the Commission has had regard to the welfare of the adopted children now living with the claimant as required by section 2 of the Child Support Act and as to whether it is appropriate to take or to continue with enforcement action given the fact that those children are living with the claimant. She confirms that the decision to take action by way of proceedings for a liability order was made on 28 November 2008. The debt then stood, it is alleged, at just under £20,000. Further information came to light in March 2009, as a result of which the debt was adjusted on 13 March 2009, which resulted in a reduction of the arrears to just under £11,000. The claimant was informed of that adjustment in a letter dated 2 April 2009.
7. It is also confirmed in that statement that the Commission was not aware of the fact that the claimant had adopted two children until a letter was received from him on 2 December 2008. Miss Vasey continues that the Commission had no means of knowing of their adoption, of which they had not been informed by the claimant, and as a result it did not give any specific consideration to the effect that the enforcement action would have on them.
8. Following that letter, the statement continues, the Commission did not give any what was called "formal reconsideration" of whether to proceed with enforcement action in respect of the claimant's debt. Miss Vasey continues as follows:

"I would not have expected there to be any such formal reconsideration, and it would not generally be the case that such a minute would be placed on the file. There would be no need for this, unless there had been a decision to discontinue action which had previously been initiated. Decision makers are however well aware of the need to give consideration to whether enforcement action is appropriate in light of new developments, and of the importance, in considering such matters, to giving consideration to the welfare of affected children. I have no reason to doubt that this was done in this case."

9. She goes on to say that in the light of the way that the issue has now arisen, however, she herself has given consideration as to whether it is appropriate to continue with the liability order proceedings against the claimant. She says that it certainly may be necessary in some cases to give consideration as to whether hardship is caused by change of circumstances with other children being born to the claimant, but the mere fact that there is a change of circumstances which may mean that the person may be less able to pay arrears than they would have been earlier is not in itself a reason for not taking enforcement action. Miss Vasey says that those considerations apply where money which is owing is money which the Commission will pass on to the parent who had care of the children during the relevant period. In the present case, she says the claimant has put forward no information beyond the bare fact that he has adopted two young children. He has not suggested that he is not in a position to pay the debt or that it would cause him or his new family any particular hardship if he was required to do so. She continues:

"Whilst I am willing to accept that, given the amount of money involved, it may cause some difficulties for him now to pay the money, that is inherent in the position which the Claimant has produced by his refusal to pay this money at an earlier stage.

12. For these reasons, in my view, it is appropriate to continue with proceedings for a liability order, notwithstanding this will have the consequences for the Claimant's overall financial position and thus, indirectly, at least, for the welfare of his adopted children."

She goes on to say that the Commission will of course need to keep the appropriateness of such action under review in the light of anything further which the claimant wishes to say.

10. After that statement was filed, the claimant filed a statement in response on 5 January 2010. In that statement he set out the family background and his present circumstances, including the children whom I have mentioned. He does not go into details of his precise financial circumstances nor of how the enforcement of all or any part of the present sum would affect him or any of his children, including his daughter in Canada or his adopted children in this country. He makes the point that he understood a letter which was written to him on 24 October 2003 by what was then called the Child Support Agency to mean that his liability would be closed in respect of any statutory provisions under the Child Support Act 1991. The letter reads as follows:

"Closure of your child maintenance account

We recently advised you that your child maintenance account payable to [and then his first two children are set out ] is to close with effect from 18 August 2003. Your accounts have been updated and this has resulted in an overcharge of £609.62 for the period 18/08/03 to 01/10/2003.

This amount has been offset against your outstanding arrears balance reducing it from £20,135.57 to £19,525.95.

Your next arrears payments of £N/A is due on N/A and N/A thereafter"

As I have indicated, those figures were subsequently adjusted.

11. There was a further statement submitted on behalf of the defendants by a Michael Costello dated 22 January 2010. He is a debt and legal enforcement policy and litigation manager for the Commission. He refers to the claimant's statement. He confirms that the claimant's daughter in Canada has not been included in any assessment made under the Child Support Act because she is living outside the jurisdiction. He points out that there is nothing in the papers to suggest that any order exists for that child. Having been made aware of that child, he again reconsidered the decision to proceed to seek a liability order against the claimant and, in particular, any impact upon the welfare of the child in Canada. He concluded that the public interest in pursuing the outstanding arrears outweighs any such impact that he had been able to identify. He goes on to say it would not generally be right to discontinue enforcement action in respect of arrears of child support solely on the basis that this would reduce the funds available to the non-resident parent to make provision for other children for whom he is responsible.
12. He continues that even if the requirement to pay the current arrears were to impact upon the amount of money which the claimant can pay in respect of the child in Canada, in his view it would not be appropriate for that reason to discontinue the proceedings for a liability order. That was because the claimant makes clear that he has made past payments in respect of the child in Canada, whereas his liability in respect of the children who are the subject of maintenance assessment remains outstanding. Mr Costello went on to say that he did not think this is a case where it could be appropriate for the Commission in the exercise of discretion to refuse to enforce outstanding arrears, short of the claimant demonstrating that the effect of enforcing his current liability would have some reasonably direct and dramatic impact upon the child in Canada or indeed upon the children whom he has adopted. He also made the point that if the claimant were to demonstrate that there may be an impact, that would have to be considered carefully against the public interest, but the Commission would continue to keep matters under review in the light of any further information which the claimant puts forward.
13. Mr Burrows, in renewing his application for permission before me today, has made it clear that the mainstay of his argument is what he alleges to be a failure of the Commission to comply with its duty under section 2 of the Child Support Act 1991. That reads:

"Where, in any case which falls to be dealt with under this Act, the Secretary of State or any child support officer is considering the exercise of any discretionary power conferred by this Act, he shall have regard to the welfare of any child likely to be affected by his decision.

14. What he submits, and this is not in dispute for the purposes of the decision I have to come to today, is that the Commission has a duty to consider the welfare of such children and that its decision in deciding to go for a liability order is susceptible to judicial review on appropriate review grounds. He says that this consideration must be prospective and not retrospective and that, if there is no consideration given at the time the decision to seek a liability order is made, then that must mean that the decision is irrational. There is, it is accepted, no procedure at present for ensuring that this duty on the Commission is complied with. This is a matter which is before other courts, as I understand it, at present. It is not part of this judgment, therefore, for me to make any final pronouncement on the general nature of the procedure or the scope of any investigation which the Commission should or should not make in order to comply with the duty.
15. It does seem to me, however, that the better practice would be, and this was not dissented from on behalf of the Commission before me today for the purposes I have to decide, to ensure that any such decision is properly minuted and taken in a robust and transparent way. In my judgment that was not done in this particular case.
16. Mr Burrows also says that it is the duty of the Commission not only to consider the welfare but to take active steps to ensure that all children who might come within the duty are brought to the attention of the Commission. He makes the point that it would be a very simple matter to put into the sort of letter sent out to the claimant in this case, that if he has other children who might come within that duty and to point the duty out, he should notify the Commission. That, as Mr Buley for the Commission today accepts, is something which is worthy of consideration and might be a very sensible and practical way of ensuring that the duty is complied with so that these sorts of challenges are not brought in the future, and that is something he says which the Commission is giving serious consideration to at the moment.
17. But for the purposes of today I must be satisfied that there is a reasonable prospect that if permission were granted in this particular case and, on the facts of this particular case, that substantive relief would be appropriate. It does seem to me it is better that such consideration be given before the decision to seek a liability order is made. But if it is not, then in my judgment the decision to commence the proceedings for a liability order and to take them before a magistrate's court is a continuing process. It is accepted, as I understand it, on behalf of the Commission that the duty is an ongoing duty. Now that I have the statements from the senior officers from the Commission who have given consideration to the welfare of the child in Canada and the adopted children in this country, in my judgment it cannot be said that there is a real prospect of successfully obtaining substantive relief were permission to be granted.
18. There were other points taken by Mr Burrows. For example he says that the notice in this case did not comply with the necessary regulations because it set out the arrears which were then adjusted and therefore did not comply with the requirements as to notices. Furthermore he says that the arrears come within section 9 of the Limitation Act 1980 and, accordingly, are statute barred. He also says that if the magistrates court proceedings were allowed to continue, then there would be a breach of the claimant's right to a fair hearing under Article 6.1 of the Convention because of the time delay. He concedes, in fairness to him, that these points may be taken before the magistrates court if the present proceedings were allowed to continue. They have been stayed pending this application. What he says is, however, all those points are bound up with his point under section 2 and that now that this court is seized of those other points, that it is something within the jurisdiction of this court to make a pronouncement on. The difficulty with that submission, as I see it, is that traditionally a claim for a review by the Administrative Court of administrative decisions and of the procedure of inferior courts is seen as a remedy of last resort. In other words if there is another remedy available to the claimant in respect of the concerns that he has and the points which he raises, he would ordinarily be required to pursue those other remedies before seeking judicial review. There is nothing in this case, in my judgment, which would provide a reason not to follow that usual practice.
19. There are other points. Firstly, Mr Burrows says that the letter which I have mentioned in effect gave to the claimant the impression that the arrears were not being enforced and then the matter would be closed. The claimant, he says, should not be required to read this letter with the critical eye of a barrister appearing before the Administrative Court. In in my judgment the letter is tolerably clear, that the arrears remained outstanding and that point is not reasonably arguable. Next, he says that the rights under Article 8 are engaged by this decision of the Commission and of the magistrates to continue to hear the proceedings. Furthermore he says that the carrying on of those proceedings would amount to a breach of those rights. In light of the decision of Munby J, as he then was, in R (Denson) v Child Support Agency [2002] EWHC 154 (Admin) and, in particular paragraphs 45 and 46 of the judgment, I am not persuaded either that Article 8 is engaged in the process of obtaining a liability order, but if it is I am not persuaded that there is a reasonable prospect of showing that this decision is disproportionate and not within the legitimate aims of the legislation involved.
20. Those aims, I am satisfied, are to ensure that an absent parent makes proper financial provision for his or her children. In that circumstance the exercise of discretion cannot be circumscribed to impede that objective
21. The claimant, furthermore, says that the Human Rights Act 1998 is such that there is no evidence that the Commission has balanced the needs of the taxpayer for whose benefit this enforcement claim is pursued as against the benefit and needs of the claimant on his family, but in light of the findings I have made I am not persuaded that that ground is made out.
22. Accordingly, and whilst I can understand in some respects why this claim was brought initially, now that the evidence is before the court which I referred to I am not persuaded that this is a case where permission should be granted and accordingly I refuse such permission.

MR BULEY : I have a couple of applications but just before I come to them. I never know whether to raise these points or not, they may be trivial. But just for the transcript, I may even have got it wrong, I think your Lordship having dealt with the main point, the section 2 point, your Lordship turned to deal with other points and I think your Lordship said something to the effect that the other points were taken on behalf of Mr Burrows, I think it should be by Mr Burrows

JUDGE MILWYN JARMAN: Certainly.

MR BULEY : It's not a major point. Just before I make my application can I just double-check something on my instructions? (confers with solicitors) There were two applications on my side. The first, I hope, won't cause any great difficulty. Your Lordship has refused permission I think, so I don't know whether a transcript would follow automatically. It would if your Lordship granted permission and wouldn't otherwise but I think on our side we would quite like to have one if that is something I can raise, and also I wonder if your Lordship would be willing to expedite it bearing in mind your Lordship said something about section 2 and, as your Lordship knows, that may come back in the Court of Appeal so it may be of some value

JUDGE MILWYN JARMAN: Are you saying the Court of Appeal are likely to take notice of my comments? Well, I can ask for it to be expedited. I prefer not to make an order to that effect I am afraid. There are some difficulties at the moment with transcripts and how long it takes, and the quality of them when they come back in draft, so I will do my best to ensure a transcript. Are you saying that this should be at public expense?

MR BULEY : I think I am, yes. Your Lordship ... but if not then we will pay for it but ...

JUDGE MILWYN JARMAN: Well if you pay for it, the request for will have to come from you ....

MR BULEY : Yes. Well I think in that case, so that your Lordship can deal with the point about expedition, can I ask that it is at public expense and it will be in the public interest to produce it. Your Lordship has heard more than normal argument for a permission hearing.

JUDGE MILWYN JARMAN: Yes, very well. Do you wish to say anything about that Mr Burrows?

MR BURROWS. No.

JUDGE MILWYN JARMAN: Very well. I will say that that is to be produced at public expense.

MR BULEY : I am grateful, my Lord. The other application that I have is for costs.

JUDGE MILWYN JARMAN: Yes.

MR BULEY : A costs schedule was sent. I know these things don't always reach ... I don't know if it reached your Lordship and I don't know if it reached Mr Burrows.

JUDGE MILWYN JARMAN: Let's have a look

MR BULEY : Mr Burrows has got it. Is it simpler if I hand it up in any event?

JUDGE MILWYN JARMAN: It probably is Mr Buley, just to ...

MR BULEY : My Lord, costs ordinarily follow the event, as your Lordship knows, so I think the starting point is that I apply for my headline figure, which your Lordship has at the penultimate page, of £8,788. I am in your Lordship's hands as to how you want to deal with it, whether you want to hear from Mr Burrows first or whether your Lordship has questions for me ....

JUDGE MILWYN JARMAN: Well we are still really at permission stage aren't we? And the usual Mount Cook principles apply

MR BULEY: Can I deal with that my Lord?

JUDGE MILWYN JARMAN: Yes.

MR BULEY : I am not sure I can point to authority on this, but my Lord I think it is generally accepted that where one has a rolled up hearing that the Mount Cook principles don't apply and that follows the logic of Mount Cook itself, because of course the point is where one has a rolled up hearing a defendant has to come to court and prepare for it as if it were a full hearing, because that is going to be the only hearing and they have to put all of their evidence in place. I would respectfully that submit that the Mount Cook  principles aren't in play here. If I am wrong about that of course what ... or, which comes to much the same thing, if I am wrong about that then I would say the very fact that it is a rolled up hearing is an exceptional reason ...

JUDGE MILWYN JARMAN: Yes, all right, but perhaps more pertinent… it will be more apparent, Mr Buley, that I have been concerned about the procedure adopted in this case. The effect of my judgment has been to say that I think it has been put right in effect.

MR BULEY : Yes.

JUDGE MILWYN JARMAN: And I know we have had the discussions about best practice and better practice, but the adjournment was necessitated in effect because I was concerned that there was no transparent consideration of the welfare of these children and that has now be put right

MR BULEY : Well I anticipated your Lordship would make that point. Can I suggest that one deals with it in this way, my Lord? I am going to be in your Lordship's hands so I don't abandon my request for the costs in full, but if your Lordship isn't with me on that and I won't press you, can I suggest that the appropriate way to deal with it to make in any event an order for a significant proportion of the defendant's costs, and the way I suggest that one might deal with it is as follows. I would invite your Lordship to order the cost of the acknowledgment of services which are £990, I would invite your Lordship ... well your Lordship, in effect my fee is £1200 and sorry .... forgive me I am underselling myself, my fee is £1600.

JUDGE MILWYN JARMAN: It is quite a rare thing for a barrister not to know what his brief fee is ....

MR BULEY : £1600, and that is in respect of two hearings and in effect we had one hearing which was unnecessary .... well perhaps was occasioned by us rather than the other side so, your Lordship, although the fee for that hearing was £1,000, in effect if we had had one hearing my fee would have been £1,000 with the costs of preparation and so forth and travel, so I would invite your Lordship to make an order for my fees in the sum of £1,000 and then your Lordship will have to take a view but I recognise it may be difficult for me to contend for the costs of preparing of the witness statements which were occasioned by the need to do something which, on your Lordship's approach, perhaps should have been done previously. So I would invite your Lordship to make an order for costs in the sum of therefore on that basis £990 for the acknowledgment of service, £1,000 in respect of my fees, and in addition, just going back to the second page, the costs incurred in preparing for one hearing by Mr Davidson which are in the sum of £1200. I would invite your Lordship to order that also because it is the ...again in a sense in respect of Mr Davidson it is the additional costs of the witness statements and so forth

JUDGE MILWYN JARMAN: Where are we now?

MR BULEY : I am sorry, I have done it slightly out of order, it is probably not helpful. The acknowledgement of service, £990.

JUDGE MILWYN JARMAN: Yes.

MR BULEY : Second, my Lord, Mr Davidson's costs of preparing for one hearing which one has on the second page in the sum of £1200 I think it is, yes that's right, and then my costs of one hearing, which is £1,000, and of course that reflects the fact that quite apart from the section 2 point we have succeeded on all the points which your Lordship ... and obviously a great deal of time has been taken up in dealing with those points, so my Lord…

JUDGE MILWYN JARMAN: Right, thank you. Yes, Mr Burrows?

MR BURROWS : Can I just check the arithmetic first? I understand Mr Buley's application, it is the £990 on the first page, total 1, its Mr Davidson's costs in connection with preparation for the permission hearing, which I think is £880, not the £1200 that Mr Buley, because Mr Buley's costs ...

JUDGE MILWYN JARMAN: There are disbursements. It's a sum total of £880.

MR BURROWS : Yes, it was £880. No solicitor attended court as I recall on the previous occasion ... so that was effectively the permission hearing.

MR BULEY: I am so sorry, I think I have misunderstood the schedule. I think my figure of £1200 should be £880 so that ....

JUDGE MILWYN JARMAN: Yes, that's what we are saying.

MR BURROWS : And then Mr Buley seeks what beyond that?

JUDGE MILWYN JARMAN: The £1,000 brief fee, and that is it, as I understand it.

MR BULEY : Yes

MR BURROWS : So its £1,000 brief fee on ... I am so sorry where is this? on the third page?

MR BULEY: Yes.

JUDGE MILWYN JARMAN: It's now called "preparation" and not brief fee I think

MR BURROWS : Yes. I am in a slightly difficult position, my Lord, because effectively well certainly on the section 2 point you were with me as far as you could go. Perhaps I misunderstood, my Lord, in which case I will be corrected I am sure. I would ask my Lord to say that it was not until certainly somewhat after say two or three weeks after Miss Vasey's statement was filed that really this case. You might say it had been abandoned and therefore up to that date Mr Joplin should have his costs.

JUDGE MILWYN JARMAN: Well, how was Mr Joplin funded?

MR BURROWS : He is privately funded, my Lord

JUDGE MILWYN JARMAN: Yes.

MR BURROWS : He is not eligible, it's touch and go, his wife is a solicitor working part time and he is a barrister working very much part time, but it is very tight funding on capital so if your house isn't an issue then the Legal Aid Board won't consider funding so he is having to fund it. Then, of course, it is a case which goes to the welfare of the children, which you might say is a factor that should inform your decision making.

JUDGE MILWYN JARMAN: If I were to intimate, and I will come back to Mr Buley about this, no order as to costs is that something you wish to press, that there be no order as to costs?

MR BURROWS : I think the way in which this case has developed it would be difficult for me to argue that my Lord. I am sorry I put that rather grudgingly,

JUDGE MILWYN JARMAN: No, no... All right, thank you.

MR BURROWS: Subject to anything Mr Buley has to say….

JUDGE MILWYN JARMAN: No, obviously. Mr Buley, my concern is that I very much appreciate the work that has now been put into this case, but it did seem to me and I think you made reference to this in your submissions, that this was a problem which needed to be highlighted. I am not saying this was the only case that ... I know you didn't put it quite like that, but this is my interpretation on what you said. At least part of the costs have been incurred it seems to me unnecessarily and that would go for the claimant as well, so by your conceding the sum of these costs may not be recoverable Mr Burrows could equally say "Well on those occasions I should have my costs." This is what I am wondering, whether the just order in all the circumstances would be no order as to costs.

MR BULEY : Well my Lord, I will address you very briefly, obviously.

JUDGE MILWYN JARMAN: Yes.

MR BULEY : I take the points your Lordship makes to me. One is always in the judge's hands on matters like these. It is a matter of broad discretion, and that is the right way to approach it. I have approached it in one way by sort of breaking down what hearings were necessary and what weren't. Another way of doing it is to stand back as it were and think about the overall position. Now the overall position here my Lord is that we have won in the end.

JUDGE MILWYN JARMAN: Won in the end, yes ...

MR BULEY : We have also won on ...

JUDGE MILWYN JARMAN: But after Mr Joplin has succeeded in obtaining a consideration or reconsideration of the welfare, whether or not you conceded that was necessary in the first instance

MR BULEY : What I was going to say my Lord was I see that, I see the force of that, but we have won in the end on everything. This is a case in which a real plethora of points have been taken. I mean I know that the section 2 point surfaced and became important, but there have been at least five other points and I think one can probably point to others if one went back through all of Mr Burrows's pleadings, and on all of those points (inaudible) necessary consideration has had to be given in full. When one considers that the Commission has incurred fees overall in the region of £8,000 plus, in my submission a significant proportion of those fees overall ought to be paid by the claimant, who has put the Commission to that expense, and in my submission therefore whether one gets to a figure of about, I think my figure came out at about £3,500, a little over £3,500, whether one gets there by the first route or by an overall assessment of that kind, a figure of that order or at any rate not significantly less gets it about right and in those circumstances... and that that is taking into account that the claimant will have had (inaudible) so I am in your Lordship's hands obviously but I would invite your Lordship to make an order for costs in that sort of amount. There it is.

JUDGE MILWYN JARMAN: Mr Burrows, it does seem to me that the question of other points is one that is fairly made. And what I have in mind is to make a sum that is a reflection of that. If I were to suggest £880 for Mr Davidson's preparation and the £1200 for Mr Buley's contribution and to leave it at that, that you should pay those costs but otherwise there should be no order to costs. When I say you, I mean your client, of course.

MR BURROWS : My Lord I think if one looks at what Mr Joplin has had to face in this case if we go to page 37. We are talking about other points ...

JUDGE MILWYN JARMAN: Yes.

MR BURROWS : First of all it is said that this case is hopelessly out of time. That point has not been pursued. Secondly the claimant is a lawyer, page 39. The supposed conflict of interest, well that has not been pursued, although it takes up a number of pages and there is the finding on Denson, which you have dealt with, I accept, and then the section 2 point is at page 33, it is a postscript. And Mr Joplin has had to come this far to establish the point which the statute said in the first place should have taken place and my Lord you have so found. My Lord if you were to say that he should pay say, I can't remember how much the claim amounts to ...

JUDGE MILWYN JARMAN: That's £1200 and Mr Davidson £880.

MR BURROWS : My Lord what you don't know is a lot of the correspondence over the past few weeks has actually related to whether or not Mr Joplin has told the adoption agency about arrears due to the Secretary of State. You would have had a bundle on this from the Commission, from the Commission's solicitor ...

JUDGE MILWYN JARMAN: Well that is nothing to do with me, is it ?

MR BURROWS : My Lord, it is to do with the preparation.

JUDGE MILWYN JARMAN: Surely they won't claim the costs of that?

MR BULEY : I am not quite sure which…?

JUDGE MILWYN JARMAN: In any event I am not ...

MR BULEY : Your Lordship is not covering that period as I understood it.

MR BURROWS : So it's the period… acknowledgment of service. My Lord, I do say quite categorically that the period up shortly after Miss Vasey's statement, on your findings, was litigation which was justified.

JUDGE MILWYN JARMAN: Well Mr Buley is only claiming, as I understand it, one brief fee.

MR BURROWS : Well, that's for the permission hearing in which he had to establish exceptional circumstances. Yes, I accept that he has. But, my Lord, if you balance the costs that Mr Joplin should pay, if my Lord you take the view that the ... perhaps I will try and find it and read it what you said in your judgment, that you were dissatisfied at the lack of transparency and you saw no reason why a letter shouldn't have been written. It has taken Mr Joplin certainly bringing the matter as far as the exchange of statements to establish that point and I would say he should have his costs up to that point, offset by any figure that you think that the Secretary of State should receive, because in terms of success he has established what is a point which is fundamental to the way in which this legislation works ... but my Lord if you were to say no order for costs, as I have said already, I don't feel I could argue with that, but I would press you further if you are against me by saying that Mr Joplin should have some of his costs balanced...

JUDGE MILWYN JARMAN: Do you want to come back, Mr Buley?

MR BULEY : Well, I mean I we can go back and forth forever but ...

JUDGE MILWYN JARMAN: Well, I know. There must be some limitation.

MR BULEY : No, no . Very briefly. My Lord we don't have any figures for what Mr Joplin's costs are so, my Lord, we can't really do it by way of a detailed ...

JUDGE MILWYN JARMAN: No, no, I am not going to do it that way.

MR BULEY : Your Lordship has, I think, my basic submission which is what you look at here is a case in which we won overall and from the outset we were right on a good 70 per cent of the case and some reflection of that in a sum ... if your Lordship is now thinking of £2,000, so be it. Some reflection of that is appropriate overall. Your Lordship has my submissions.

JUDGE MILWYN JARMAN: Well, Mr Burrows, I am persuaded that that is right, that this is a bill of some £8,788, and for the reasons I have already alluded to I am not persuaded that that or anything like it is an appropriate sum to pay. It does seem to me that, as I said, I can understand why the claim was made in the first place. It has taken a witness statement of November 2009 to set out the position in respect of the adopted children and one as recently as a few days ago to set out the position in relation to the child in Canada. On the other hand I can see the force of the point that the attack on these decisions was quite a wide-ranging attack. I don't forget that the acknowledgement of service also set out a number of different matters. For that reason I do not think it is right for me to award the costs of preparation of the acknowledgement of service, but in the end I have been much assisted by Mr Buley's submissions and I do think I should award some costs and the appropriate sum in my judgment is £2,000, so the claimant will pay £2,000 towards the defendant's costs. Thank you both for your assistance, and may I ask that your heavy bundle of documents be taken back.

MR BULEY : My Lord, thank you very much

JUDGE MILWYN JARMAN: Thank you.