Melanie Newman v Southampton City Council
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Roberts |
| Judgment Date | 05 August 2020 |
| Neutral Citation | [2020] EWHC 2148 (Fam) |
| Docket Number | Case No: PO16C01149 |
| Year | 2020 |
| Date | 05 August 2020 |
| Court | Family Division |
[2020] EWHC 2148 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE Mrs Justice Roberts
Case No: PO16C01149
and
Anya Proops QC, Zac Sammour and Kate Temple-Mabe (instructed by Howard Kennedy LLP) for the Applicant
Heather Rogers QC and Sarah Earley (instructed by Southampton City Council) for the Local Authority
Deidre Fottrell QC (instructed by Goodman Ray) for the Guardian
Hearing dates: 2 nd and 3 rd March 2020
Judgment released to counsel on 31 May 2020
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Having handed down my substantive judgment in this matter last week, I am now asked to rule on two remaining issues: (i) costs; and (ii) the application by Ms Newman for permission to appeal my substantive decision in relation to the disclosure of documents. My judgment in relation to the latter is reported as Melanie Newman v Southampton City Council, AB, TR and M (a child) (through her Children's Guardian) [2020] EWHC 2103 (Fam) (“the mainframe judgment”).
Before addressing the two outstanding issues, I should add by way of postscript to my judgment that I am aware that the case of Dring 1 to which I have referred following its journey up to the Supreme Court in 2019 has since been remitted to Picken J who has delivered a further judgment reported as Graham Dring (for and on behalf of The Asbestos Victims Support Group Forum UK) v Cape Intermediate Holdings Limited [2020] EWHC 1873 (QB) (handed down on 16 July 2020). Because his decision on the application before him turned on its particular facts, it is agreed by counsel that there is no need for me to deal with further submissions in the context of Ms Newman's case. I mention it only for the sake of completeness.
A. COSTS
All parties are agreed that there should be no order in relation to the costs of the substantive application for disclosure. In terms, I refused the application for disclosure of the entire court file but I did so on the basis that Ms Newman should be permitted to have access to certain documents which I identified in a schedule which I propose to attach to my order. Ms Newman was represented throughout by her legal team on a pro bono basis. The local authority, on the other hand, has incurred substantial costs in relation to the application. In
agreeing that it will not seek to recover any of its costs, the local authority has been guided by the President's Guidance on Reporting in the Family Courts (3 October 2019). In that document at paragraph 16, Sir Andrew McFarlane said this:“Finally, in seeking to vary/lift reporting restrictions, the standard approach as to costs in children's cases will apply and a reporter, media organisation or their lawyers should not be at risk of a costs order unless he or she has engaged in reprehensible behaviour or taken an unreasonable stance.”
I agree entirely with the local authority's approach. Ms Newman was entitled to make her application as she did and there has been nothing in her conduct of this litigation which could be characterised as unreasonable, far less reprehensible.
The issue which arises for determination is who should pay for the costs of providing the documents which I have said she should be entitled to see. There are two aspects to these costs. The first is the time which it will take to ensure that they are appropriately redacted prior to disclosure. The second is the cost of producing copies of the redacted documents.
The local authority seeks an order that Ms Newman should meet these costs. Reliance is placed on the decision of the Supreme Court in Dring (above) where, in paragraph 47, the general principle was stated in these terms:
“The non-party who seeks access will be expected to pay the reasonable costs of granting that access.”
On behalf of the local authority, Ms Rogers QC and Ms Earley remind me that this is a restatement of the general approach adopted by the Court of Appeal in Dring to which I was referred during the course of argument. That said, costs are in the discretion of the court and it has power to depart from the standard order. By way of example, in R (British American Tobacco) v Secretary of State for Health [2018] EWHC 3586 (Admin), Green LJ expressly waived any requirement for payment in respect of documents which were released following an application for judicial review in circumstances where there had been a significant delay on the part of the court in retrieving the same. It had been thought that the relevant documents on the court file had been destroyed before the discovery that they were available in electronic format.
(i) The redaction exercise
Because the documents which are to be released to Ms Newman relate to public law proceedings involving a child, I have determined that certain aspects of the documents should be redacted prior to disclosure. The reasons for that decision are set out fully in the mainframe judgment. As to what that redaction exercise will entail, I am told that the solicitor who has been dealing with the matter throughout will be best placed to undertake the task. The process will not be straightforward and she is familiar with the papers and knows what will be required. In particular, I am told that there are over 150 pages of experts' reports alone which will need to be carefully redacted to protect the private information relating to the child. The local authority has estimated that it will take the solicitor up to 10 hours to complete this task. At an hourly rate of £95.00, this element of the claim for costs would be a maximum of £950.00 plus VAT.
(ii) The copying exercise
In addition, the local authority seeks the costs of copying and collating the redacted material. This amounts to 283 pages in all and can be undertaken by an administrative assistant and capped at the rate of £45 per hour plus VAT.
I am told that the local authority would be content to cap its claim for costs at £1,200 inclusive of VAT. They will only charge on the basis of time actually spent. Ms Rogers reminds me that the local authority has already met significant costs in relation to the administrative exercise which had to be undertaken in notifying relevant third parties affected by Ms Newman's application for disclosure. It was also responsible for preparing the court bundles which were used for the purposes of the final hearing. No claim is being made for these costs. Furthermore, I am reminded that Ms Newman has been on notice throughout the proceedings that the local authority would be seeking an order which required her to pay for the costs of providing whatever documents the court decided she should see.
Ms Newman objects to meeting the costs of the redaction exercise although she has offered to meet the costs of the copying exercise. On her behalf, her legal team has made a number of points to support her position. I can summarise these submissions in this way.
First, as a matter of principle, Ms Proops QC, with her two junior counsel, submits that it would be wrong in principle for the local authority to seek to transfer to a member of the public the burden of any costs incurred as a result of complying with an order which this court has made. Thus, where the court has made an order which permits the disclosure of selected documents to Ms Newman, it is for the local authority to meet the costs of complying with that order. In pursuing that submission, Ms Proops reminds me that the limited disclosure which I have permitted engages important Article 10 rights which Ms Newman has as a...
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