Enfield London Borough Council v P
| Jurisdiction | England & Wales |
| Judgment Date | 1996 |
| Date | 1996 |
| Court | Family Division |
HOLMAN, J
Costs – wardship proceedings – local authority ordered to pay costs of parent – solicitor for parent out of time for lodging bill of costs for taxation – when bill should have been lodged – whether there should be a reduction or disallowance of bill.
In wardship proceedings in 1990 it was ordered, inter alia, that the care and control of four children should be granted to their mother and that the father should be permitted to live with the mother and children. The local authority appealed to the Court of Appeal from the provision in the order permitting the father to return home. The appeal was dismissed, judgment being given on 25 October 1990. The court ordered that the costs of the mother and the father, who were separately represented, be taxed, if not agreed, and paid by the local authority. The court's order as to costs was perfected on 9 November 1990. There were further court hearings in 1991 and 1992 and in 1993 the children ceased to be wards of court.
The taxed costs of the father for the Court of Appeal hearing in 1990 were paid in 1992.
The solicitors for the mother first lodged with the court their bill of costs for taxation inter partes in relation to the Court of Appeal hearing in 1990 in December 1994. The bill was served on the local authority in February 1995. The local authority applied to a district judge for an order that the bill be disallowed or, alternatively, allowed in only a nominal amount pursuant to RSC Ord 62, r 28(4). The district judge ordered that £3,000 be deducted from the final sum taxed.
The local authority appealed.
Held – allowing the appeal: (1) As to the time-limit for lodging a bill of costs for taxation, RSC Ord 62, rr 8 and 29 were relevant. There was an apparent conflict between the provisions of rr 8 and 29 but the combined effect of the two rules was that a party must begin proceedings for taxation within three months of the order or judgment awarding him the costs or the conclusion of the cause or matter if that was later. A sensible or purposive construction had to be given to the words "cause or matter". In relation to wardship proceedings with their enduring quality the words "conclusion of the cause or matter" in RSC Ord 62, r 8 had to be given a special and more restrictive meaning. It was not usually difficult to determine in relation to any given wardship proceedings what constituted the main hearing or the substantive hearing. In the present case this was the hearing in October 1990, the decision of the first instance Judge being confirmed by the Court of Appeal later the same month. Thus, the time for beginning proceedings for taxation of costs under the order of the Court of Appeal was three months from when that order was
perfected and accordingly expired on 9 February 1991. The mother's solicitors were therefore three years and 10 months out of time in lodging their bill.
(2) As to a deduction or disallowance of the bill of costs, it was clear from the authorities cited that in cases where the delay had been significant and there was no excuse the courts had sometimes reduced the amounts allowed very considerably or disallowed the bill entirely. However, the circumstances of cases varied considerably. In the present case the court must consider all the circumstances. The delay was three years and 10 months which was a very serious period of delay. It was quite unjustifiable to allow the time-limits for inter partes taxation to pass by without taking any steps at all. A first and obvious step would have been for the solicitors to write to the local authority suggesting that taxation be postponed until the outcome of subsequent hearings in 1991 and invite their comments. A copy of the bill could have been sent to see if it could be agreed. Even if the approach of the solicitors was acceptable during the period in 1991 when the case was relatively active, it could not properly justify taking no action subsequently. A delay in obtaining taxation of costs resulted in the local authority being exposed to extra interest. It was impossible precisely to compensate for the extra interest until the taxed amount of the bill was known. In this case the district judge was primarily concerned to compensate the local authority for the additional interest to which they had become liable. A disallowance beyond compensating the local authority could, where appropriate, be ordered even where the "penalty" would not fall on the solicitors themselves but on the Legal Aid Board. In this case the district judge had not gone far enough. It was not reasonable for the solicitors to expect the local authority to pay their profit costs; and the local authority should be relieved of the extra liability to interest in respect of the balance on the bill which was almost entirely counsel's fees.
Statutory provisions referred to.Judgments Act 1838, s 17.
RSC Ord 58, r 1 and Ord 62, rr 3, 8, 28 and 29.
Cases referred to in judgment.Allied Collection Agencies Ltd v Wood and Another [1981] 3 All ER 176.
Drake & Fletcher Ltd v Clark (1968) 112 SJ 95.
Johnson Stevens Agencies Ltd v Beavis Walker (unreported) 12 July 1994.
Loring v London Fire and Civil Defence Authority (unreported) 22 October 1992.
Newsgroup Newspapers Ltd v SOGAT '82 and Others (unreported) 25 March 1992.
Pamplin v Fraser (No 2) [1984] 1 WLR 1385; [1984] 2 All ER 693.
Pauls Agriculture Ltd v Smith [1993] 3 All ER 122.
Rafsanjan Pistachio Producers Co-operative v Bank Leumi (UK) plc (unreported) 8 October 1992.
Royal Bank of Scotland v Sindall Construction and Others (unreported) 7 June 1994.
Settlement Corporation and Another v Hochschield (1967) 111 SJ 354.
Nicholas Bacon for the local authority.
Jeremy Morgan for the mother's solicitors.
MR JUSTICE HOLMAN.This case concerns the costs of wardship proceedings, not proceedings under the Children Act 1989. It therefore falls to be determined under the provisions of the Rules of the Supreme Court and in particular Ord 62. I have been told that there is no material difference in any part of the Rules of the
Supreme Court at any date relevant to this case – ie between October 1990 and now.
Introduction and backgroundDuring 1990 four young children were made wards of court by the London Borough of Enfield ("Enfield"). A hearing as to their future took place before Ward, J which lasted around five days. On 5 October 1990 he ordered, so far as is now material, that (1) the children should "remain wards of court during their minorities or until further order"; (2) care and control should be granted to their mother; (3) the children should be under the supervision of Enfield for three years; (4) from a date in November 1990 the children's father should be permitted to return home to live with the mother and the children; and (5) there be leave to any party to restore the originating summons.
Ward, J made no order as to costs save for legal aid taxation where appropriate.
Enfield appealed to the Court of Appeal from the provision in the order permitting the father to return home. Leading and junior counsel appeared for each of the local authority, the mother and the father. The Official Solicitor as guardian ad litem for two of the four children was represented by junior counsel. The appeal was heard on 24 October 1990 and judgment was given on 25 October 1990. The Court of Appeal dismissed the appeal and affirmed the order of Ward, J. The Court of Appeal went on to order on 25 October 1990 that the costs of the mother and the father of the appeal be taxed, if not agreed, and paid by Enfield to the mother's and father's solicitors respectively.
Separately it was ordered that the costs of the mother and father be taxed or assessed in accordance with the provisions of reg 107 of the Civil Legal Aid (General) Regulations 1989.
Finally, it was ordered by consent that one half of the Official Solicitor's costs as guardian ad litem of two of the children be taxed, if not agreed, and paid by Enfield to the Official Solicitor.
The order of the Court of Appeal was actually perfected by a seal dated 9 November 1990.
There were a number of further court hearings. On 16 January 1991 Booth, J heard an ex parte application by Enfield for leave for one of the children to be interviewed by the police and medically examined.
On 23 January 1991 there was a further application to His Honour Judge Callman, sitting as a High Court Judge, again in connexion with interviewing one of the children. The application was in form ex parte but the mother and father were each represented. The order provided inter alia that "this matter to be restored in April 1991 for the purpose of review on a date to be fixed".
In the event, the case seems next to have come before Mr Peter Coni, QC, sitting as a deputy High Court Judge, on 22 July 1991. He made various orders, one of which clearly contemplated a further hearing the following November.
The case then came before Ward, J on 21 November 1991. It seems that by then the family had moved into the area of the Hertfordshire County Council, for the Judge made a new supervision order in favour of that local authority. However, Enfield remained the plaintiff and the Hertfordshire County Council was not at that stage joined as formal parties. He fixed the matter for a further review "on the first open date after 15 June 1992 and in any event before 14 October 1992".
In the event, it actually came before Johnson, J on 28 October 1992. He continued the wardship. He seems to have joined the Hertfordshire County Council as a defendant and he directed that the matter be restored for further review in October 1993.
There was thus never a time between 23 January 1991 and October 1993 when the most recent order did not contemplate a further court hearing.
On 27 October 1993 Ward, J ordered that the children cease to be wards of court and that the originating summonses be dismissed. The order of 27 October 1993 was actually perfected by seal dated 28 October.
On...
To continue reading
Request your trial