Re G (Official Solicitor's Costs)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ORMROD |
| Judgment Date | 29 January 1982 |
| Judgment citation (vLex) | [1982] EWCA Civ J0129-1 |
| Court | Court of Appeal (Civil Division) |
| Date | 29 January 1982 |
| Docket Number | 82/0021 |
[1982] EWCA Civ J0129-1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(FAMILY DIVISION)
(Mr. Justice Hollings)
Royal Courts of Justice
Lord Justice Ormrod
and
Lord Justice Fox
82/0021
re Law Reform (Misc. Provs.) Act, 1949 re Guardianship of Minors Acts 1971–1973 Mayor & Burgesses of London Borough of Lewisham v. The Official Solicitor to the Supreme Court.
MR. ANTHONY F. B. SCRIVENER Q.C. and MISS ANITA M. RYAN (instructed by the Borough Solicitor) appeared on behalf of the Appellants (Applicants).
MR. LIONEL SWIFT, Q.C. and MR. PAUL H. COLLINS (instructed by the Official Solicitor) appeared on behalf of the Respondent (Respondent).
The judgment I am about to read is the judgment of the Court.
This is an appeal by leave of the judge from an order as to costs made by Mr. Justice Hollings, in wardship proceedings on 17th February 1981. By his order the plaintiffs, the London Borough of Lewisham, were directed to pay one half of the costs of the Official Solicitor, who was acting as guardian ad litem of the wards. The appeal is brought on a "friendly" basis to determine an issue which has become, in recent years, a matter of considerable importance to local authorities and to the Official Solicitor, namely, what, if any, provision should be made for the Official Solicitor's costs, as guardian ad litem of the ward, in wardship proceedings, initiated by a local authority in what they consider to be the interests of the child or children concerned.
The problem, which is a relatively novel one, arises from two recent developments. Since the transfer of wardship cases from the Chancery Division to the Family Division by the Administration of Justice Act 1970, section 1, the number of cases has risen very considerably, and this jurisdiction is being used increasingly by local authorities, particularly in difficult cases, in preference to proceedings in magistrates courts. At the same time, a policy of strict control of public spending has been adopted by the Government, involving the imposition of "cash limits", which means that it has become a matter of concern to all public bodies to watch their expenditure very carefully. It is, therefore, no longer appropriate to approach the problem raised by this appeal by saying that the costs will have to be borne by the public either way, so it matters little out of which public pocket they are paid. It now matters very much to the individual pockets concerned. The parties to the appeal have each filed evidence dealing with their respective financial problems, which indicate the scale of their expenditure in wardship proceedings. Though not relevant to the issues in the appeal, this clearly demonstrates the seriousness of the issues involved in it.
Parallel with these developments, a significant change of practice seems to have taken place. It appears to have become something of a routine in these cases to make the children parties to the proceedings and bring in the Official Solicitor as guardian ad litem at a very early stage. This must have considerably increased the work load of the Official Solicitor and his necessary expenditure.
In two unreported cases, Re "F" and "P" v. "P", this court drew attention to this new practice and questioned its value in all cases. As a result, the learned President has issued a practice direction (8th December 1981) to the effect that orders of this kind should only be made where the judge or registrar considers there is a special reason for bringing in the Official Solicitor. This direction, which is no more than a return to the older practice, should reduce the costs and the burden on the Official Solicitor, and so, largely, eliminate in the future the problem raised by this appeal. However, there are, as we were informed at the Bar, a considerable number of other cases awaiting the decision in this case.
Mr. Scrivener, Q.C., on behalf of the appellant local authority, contended first, that in principle, in cases in which both a local authority and the Official Solicitor are involved in wardship proceedings, the costs are at the unfettered discretion of the trial judge, and there is no general rule or presumption that the local authority should pay the Official Solicitor's costs; secondly, that the. learned judge did not properly exercise his discretion in that, as shown by the transcript of the discussion on costs, he made his order simply on the basis of "splitting the difference"; and thirdly, that where two public bodies are acting in pursuance of their public duty in the interests of the ward, there should normally be no order as to costs between them.
Mr. Swift, Q.C., for the Official Solicitor, submitted that the opposite approach was the proper one, namely, that the Official Solicitor's costs should be paid by the local authority which initiated the proceedings as plaintiff unless there are special reasons to the contrary.
There is now no specific provision in the Rules of the Supreme Court relating to the costs of the Official Solicitor as guardian ad litem since R.S.C. Order 65, rule 13 was rescinded in or about 1961. The statute (Supreme Court of Judicature Act 1925, section 50, now section 51 of the 1981 Act) gives the trial judge an unfettered discretion as to costs, subject to the rules of court. No fetter, imposed by the Rules of Court, applies to the present case, because Rules 3 and 6 have no application. Prima facie, therefore, the question of costs as between the local authority plaintiff and the Official Solicitor are in the unrestricted discretion of the trial judge.
The learned judge, as appears from the transcript, did not have the benefit of...
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