Re H (Costs: Care Proceedings)
| Jurisdiction | England & Wales |
| Judgment Date | 20 July 1995 |
| Court | Family Division |
CAZALET, J SITTING WITH DISTRICT JUDGE WHITEAND MS EILEEN PEMBRIDGE AS ASSESSORS
Costs – counsel fees in care proceedings – relevance of fees allowed to other counsel – interpretation of remuneration regulations – principles to be applied in determining counsel's fees – appropriate quantum for a senior junior.
A very senior junior counsel acted for the child in local authority care proceedings in 1992/1993 at High Court level in London. The allegations against the parents were based on the death of an older sibling as a result of traumatic non-accidental injuries. Expert evidence was called as to the extent the older child's injuries would have been apparent to a carer, mother offering herself as carer and indicating that she believed the father was responsible for the older child's death. The final hearing which took place before the President, was listed for 10 days and ran for 12. The local authority, mother and father were represented by both leading and junior counsel. A care order was made. The guardian ad litem supported the local authority's application. Shortly after the hearing, counsel for the child took silk. An order was made for legal aid taxation of the guardian ad litem's costs. On taxation the fees allowed for counsel for the guardian ad litem were substantially reduced in respect of certain interlocutory hearings and in respect of the final hearing from £15,000 claimed to £5,000. Upon review the district judge increased the final brief fee to £6,000, refreshers being allowed at £600 per day. Being dissatisfied, the guardian ad litem's solicitors sought a review by the Judge on counsel's behalf.
Held – Where a standard fee for counsel was contained in Sch 1 to the Legal Aid in Family Proceedings (Remuneration) Regulations 1991 ("the Regulations") then this was the fee that a taxing officer was obliged to allow unless satisfied that it was unreasonable to allow such fee. If so satisfied then the fee to be allowed was restricted to any maximum fee specified in Sch 1 to the Regulations unless the taxing authority was satisfied that owing to the time and labour expended by counsel or to any other special circumstances of the case, the maximum fee would not provide reasonable remuneration for some or all of the work done in which case, and in the case of purely discretionary fees, the taxing authority's discretion fell to be exercised in accordance with the provisions of the Matrimonial Causes (Costs) Rules 1988 ("the seven pillars"). The quantum of fees allowed for other counsel in the same matter were part of the circumstances to be considered but only as one factor. The taxing authority might properly pay regard to the amounts set out in Sch 1 in exercising his discretion, but must examine each main item of counsel's fees to determine whether any standard or maximum fee might be exceeded. It was for counsel's clerk to claim and
justify the fee sought or only the standard or maximum fee could be allowed. Time records should be provided. In the instant case some adjustment would be made to some of the interlocutory fees which would broadly be allowed at the maximum rates in Sch 1. The brief fee claimed at £15,000 would be allowed at £7,500 taking into account the very serious nature of the allegations, length of trial, skill and responsibility of senior and specialized counsel, fees allowed to other counsel, the volume of documents and over 40 hours preparation time. Refreshers had rightly been allowed by the district judge at £600 per day.
Statutory provisions referred to:Legal Aid in Family Proceedings (Remuneration) Regulations 1991, Sch 1, Part I, para 1(2).
Matrimonial Causes (Costs) Rules 1988, Sch 1, Part I.
Cases referred to in judgment:Children Act 1989 (Taxation of Costs), Re[1995] 1 FCR 688.
Lord Chancellor v Wright and Another [1993] 1 WLR 1561; [1993] 4 All ER 74.
Practice Direction: Registrar's Direction: Matrimonial Causes (Costs) Rules [1988] 1 WLR 1162; [1988] 3 All ER 734.
Jeremy Morgan in support of the objections.
MR JUSTICE CAZALET.In May 1992 the local authority which has been concerned in this case made application to the court pursuant to s 31 of the Children Act 1989 for a care order in respect of a child H. That application was transferred to the Principal Registry of the Family Division and at an interlocutory hearing on 9 July 1992 was further transferred for hearing by a High Court Judge. Such was the nature of the applicant's case and the evidence to be called that, in November 1992, the final hearing was estimated to last for 10 days. In fact the hearing began on 1 February 1993 and lasted 12 days. Judgment was reserved to a further thirteenth day. The substantive hearing was before the President of the Family Division, who, on 26 February 1993, made H the subject of a care order.
The hearing before me concerned the appropriate level of costs to be allowed in taxation for the guardian ad litem as legal representative of the child. The main question related to the quantification of counsel's fees.
The facts of the case can be readily summarized. H, through his guardian ad litem, was the third respondent to the proceedings; he was the child of unmarried parents. His mother, the first respondent, had previously given birth to a son who had died in May 1991, aged 3½ years, as a result of a traumatic rupture of the intestine. The first respondent mother and second respondent father were arrested following that injury and death, but the Crown decided not to prosecute on the ground that there was insufficient evidence to prove which parent had caused the fatal injury. The first and second respondents (hereinafter referred to as the mother and father respectively) thereafter moved to London, where H was born on 9 April 1992. Within one month of his birth the local authority applied for and obtained an emergency protection order from a family proceedings court. This was extended, and although he was subsequently permitted to return to his mother, on 20 May 1992 an interim care order was made with the care application being transferred
to the Principal Registry of the Family Division. Interim care orders were renewed until the final hearing. During that period the father maintained his firm denial that he had caused the appalling injuries which had led to the death of the older child. Until about 10 days before the trial the mother maintained her denial that the father had caused the child's death.
However, shortly before the trial the mother told social workers that she believed that the father had killed the child; she then obtained an injunction restraining him from using violence against her or from entering or visiting her home. In 1992 the father was sentenced to a 12-month term of imprisonment for assaults upon the deceased child which were entirely separate from those which had led to the child's death. Notwithstanding this very serious background the local authority had allowed H, up till shortly before the hearing, to live at home, save for one short period, with his mother, and to have contact to his father. It was contended at the hearing that the mother had a realistic claim to being the child's long-term carer provided that she was found not to have been responsible for the death of the older child and provided also that she had clearly distanced herself from the father (which she said that she had done shortly before the hearing). Issues arose as to the timing of the injuries which had caused the death. Evidence was given by pathologists which went to the question of whether the mother could have been the responsible party. There was disagreement between the experts as to the extent to which the injuries inflicted during the days before the child's death would have been apparent to a carer. The local authority's decision to allow the child to leave hospital and live with his mother was the subject of serious criticism and the question arose as to whether the Official Solicitor should be invited to replace the panel guardian ad litem. Evidence was given at the hearing that, despite the mother's denials of an ongoing relationship with the father, she had been seen in his company.
In his judgment the President concluded that the father was a potentially dangerous man unable to control himself, who should be recognized as a potential risk to small children and who should not have future contact with H. He found that whilst the mother undoubtedly loved H, she could not be trusted, that despite having given evidence to the contrary the mother had not separated from the father, and that to allow her to undertake the child's care would involve the taking of a wholly unacceptable risk. The President approved an alternative family placement, rejected the father's application for contact and gave the local authority leave to terminate all contact at the earliest opportunity. He also gave the local authority leave to commence proceedings to free the child for adoption.
During the course of the hearing the local authority, the father and the mother were represented by both leading and junior counsel. The child/guardian ad litem was represented at certain interlocutory hearings and at the final hearing by junior counsel only, who in fact very shortly after the substantive hearing took silk. This representation was pursuant to the grant to the guardian ad litem of a legal aid certificate dated 15 May 1992.
The final order provided that the costs of the assisted parties were to be taxed in accordance with the provisions of the Legal Aid Act 1988. The relevant bill of costs was lodged for taxation in the Principal Registry in April 1993. A delay then occurred and it was not until November 1993 that the papers and bill were
referred to District Judge Segal. On 26 November 1993 he provisionally taxed the bill. In the course of that provisional taxation he, inter alia, reduced substantially some of the sums that had been claimed for counsel's fees. Neither solicitors nor...
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