Re N (A Child) v A and Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Munby |
| Judgment Date | 06 August 2009 |
| Neutral Citation | [2009] EWHC 2096 (Fam) |
| Docket Number | Case No: FD03P02333 |
| Court | Family Division |
| Date | 06 August 2009 |
[2009] EWHC 2096 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(In Private)
Before: Mr Justice Munby
Case No: FD03P02333
In The Matter of N (A Child)
Dr Michael Pelling for the Applicant (father) (pursuant to leave of the court granted under section 27(2) of the Courts and Legal Services Act 1990)
Mr David Holden for the First Respondent (mother) (pursuant to leave of the court granted under section 27(2) of the Courts and Legal Services Act 1990)
Ms Shelagh Farror (instructed by Goodman Ray) [on 5 August 2009 Ms Gwen Williams of Goodman Ray] for the Second Respondent (child)
Hearing dates: 5–6 May 2009, 5 August 2009
Mr Justice Munby:
I handed down judgment in relation to what I will call the disclosure issue on 8 July 2009: Re N (A Child), A v G [2009] EWHC 1663 (Fam). I handed down judgment in relation to what I will call the section 8 issues on 17 July 2009: Re N (A Child), A v G [2009] EWHC 1807 (Fam). I do not repeat or even attempt to summarise those judgments. I take them as read. Anyone who may hereafter need to consider this judgment should first read them.
At my invitation Dr Pelling has helpfully provided drafts of two orders to give effect to those two judgments. The first is in the following terms:
“AND UPON the Applicant's Request being superseded by the coming into force on 27 April 2009 of Part XI of the Family Proceedings Rules 1991 [specially Rules 11.2(1)(c) & 11.4(1)(c)] but the 1st and 2nd Respondents applying for restrictions on the Applicant's right to disclose case documents, pursuant to Rule 11.2(1)(c)
AND UPON the Parties consenting to the Court deciding the issue on the basis of the written submissions of the Parties without the necessity of an oral hearing, and the Court subsequently reading: (1) Counsel for the Guardian's Submission dated 19 May 2009; (2) the 1st Respondent's Submission dated 26 May 2009; and (3) Dr Pelling's Submission for the Applicant dated 5 June 2009
IT IS ORDERED THAT:
1 There be No Order on the Applicant Father's Request for Leave to Disclose.
2 The 1st and 2nd Respondents' applications for restrictions on the Applicant's intended disclosure of documents to the General Medical Council be dismissed.
3 The Applicant … be released forthwith from his Undertaking given on 6 May 2009 not to disclose, or cause to be disclosed by any other person, to the General Medical Council any of the court documents or material which were the subject of his Request for Leave to Disclose.”
The second reads as follows:
“IT IS ORDERED THAT:
1 The Applicant's Applications by Request dated 2 October 2008 for Amendment and Declaration as to legal status of the Consent Order herein dated 29 July 2008, be dismissed.
2 The Applicant's Applications by Form C2 issued 24 April 2009 (which included and superseded applications of substance not dealt with elsewhere contained in his List of Orders Sought dated 16 January 2009), excluding Applications relating to Disclosure which are dealt with by a separate Order herein dated 5 August 2009, and excluding Applications dealt with by the Consent Order herein dated 8 July 2009, be all dismissed, save that there be No Order on Items 5 and 8 in Section 2 of the Form C2.
3 The Respondent Mother's 6 substantive Applications (excluding for an order under s.91(14) Children Act 1989) contained in her List of Orders Sought dated 19 January 2009 and further substantive Applications contained in her Position Statement and Skeleton Argument both dated 30 April 2009 (excluding for an order under s.91(14) Children Act 1989), be all dismissed.”
I do not understand anyone to object to the drafting of these orders, which seem to me properly to give effect to my two judgments.
I have now to deal with (1) the question of costs, (2) the applications by the mother and the guardian for an order pursuant to section 91(14) of the Children Act 1989 and (3) the question of leave to appeal.
First, however, I need to describe events since I gave those two judgments.
Events since judgment
The judgment in relation to the disclosure issue was handed down on 8 July 2009. The following day I received from Dr Pelling a communication indicating that the father was seeking an order for costs in his favour in relation to the disclosure issue in the sum of £1,260, to be paid as to 90% by the guardian and as to 10% by the mother. The following day (10 July 2009) the mother invited me to give directions for submissions in relation to costs and indicated that her stance in relation to seeking permission to appeal in respect of the disclosure issue might be affected by the father's response to my judgment (not yet given) in relation to the section 8 issues.
The judgment in relation to the section 8 issues was sent to the parties on 17 July 2009. Later the same day I sent the following message to the parties:
“In relation to both judgments I propose, subject to any suggestions to the contrary, to deal with all costs issues on the basis of brief written submissions (no more than 4 sides of A4).
In relation to the judgment of 8 July 2009, the father has already stated his position. May I suggest that the mother and the guardian both respond with their submissions by no later than Wednesday 22 July and that Dr Pelling replies by no later than Monday 27 July. In the meantime, would Dr Pelling please supply us with a copy of his invoice / account to the father for the fees claimed.
In relation to the judgment of 17 July 2009, it would assist if everyone could indicate by 12 noon on Wednesday 22 July (without necessarily giving any detailed reasons at that stage) what, if any, order(s) for costs they are seeking.
So that all questions of permission to appeal can be considered together, I propose to extend the mother's time for seeking permission to appeal against the judgment of 8 July until 31 July 2009.”
Dr Pelling responded on 20 July 2009, indicating, in relation to the judgment on the section 8 issues, that the father would be seeking an order that there be 'no order for costs' and that he would be seeking to appeal “at least some parts” of my decision, adding that they needed time to consider this and take further advice. He drew my attention to the procedural difficulties arising out of CPR 52.3(2) and 52.4(2) and referred me to the notes in the 2007 Green Book to CPR 52.4. He continued:
”So I would respectfully ask that you fix a very short hearing on or around 31 July 2009 early AM to hand down both Judgments in final approved form in open court, including your decision on costs in both cases. Both Orders could be finalised and dated for the same date. I would wish to attend on behalf of [the father] to ask for Leave to Appeal and to collect printed copies of the Judgments; [the father] would not object to others not attending, or requesting Leave to Appeal in writing (if copied to [him] and myself), but on the basis that any request for Leave to Appeal would be adjudicated upon at the hearing. [The mother] can similarly make any request in writing about the continuation of [the father's] Undertaking, to be adjudicated at the hearing. So nobody need incur costs of attendance if they did not wish to. An advantage of proceeding in this way is that all parties would then have 21 days from 31 July (or around then) to go to the Court of Appeal on any matter they wished to appeal. This would give adequate time to all parties and their advocates in what after all is now the summer holidays and it isn't only [the father] and [the mother] who have children to look after.”
The mother responded the next day (21 July 2009) indicating that she was seeking an order that the father pay the costs. She invited me to give directions in relation to her application for a section 91(14) order.
The guardian's solicitor responded the following day (22 July 2009):
“The Guardian has carefully considered the judgment and the comments made about the father's approach to the litigation. Despite the unreasonableness of much of this approach, the Guardian has instructed that she will not pursue an order for costs so as to limit the likelihood of further litigation.”
The guardian's submissions in response to the father's application for the costs in relation to the disclosure issue followed on 24 July 2009. Dr Pelling's submissions in reply followed on 26 July 2009.
On 27 July 2009 my clerk sent the following message to the parties:
“Costs
In the light of the parties' stated positions, and on the footing that all parties are seemingly agreed that all questions of costs should be dealt with on the basis of brief written submissions (no more than 4 sides of A4) … the judge suggests that the remaining arguments in relation to costs should be dealt with as follows:
(a) [The mother] is to set out no later than Thursday 30 July 2009 her submissions in support of her case that [the father] should pay her costs in relation to both judgments; and
(b) [The father] is to set out his submissions in response to (a) no later than Monday 3 August.
The judge will then give his decision and reasons in relation to costs in a further judgment to be handed down at a very short hearing on, he suggests, Wednesday 5 August 2009.
Permission to appeal
The judge directs that, if any party wishes to seek permission to appeal against any of the matters dealt with in either judgment, they are by Monday 3 August 2009 to serve on the other parties, and at the same time copy to the judge by email, a brief skeleton or written submissions (no more than 4 sides of A4) identifying precisely the issues on which and summarising briefly the grounds on which permission is being sought. Anyone who wishes to amplify these arguments orally can do so briefly at the hearing on...
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