Re T (Children) (Costs)
| Jurisdiction | England & Wales |
| Judge | LORD PHILLIPS |
| Judgment Date | 25 July 2012 |
| Neutral Citation | [2012] UKSC 36 |
| Date | 25 July 2012 |
| Court | Supreme Court |
[2012] UKSC 36
Lord Phillips, President
Lady Hale
Lord Mance
Lord Dyson
Lord Carnwath
Appellan
Janet Bazley QC
Elizabeth Shaw Sally Stone
(Instructed by Hull City Council Legal Section)
Respondent
Simon Hirst
(Instructed by Sandersons Solicitors)
Intervener (Children and Family Court Advisory and Support Service)
Teertha Gupta QC
Dorothea Gartland
(Instructed by CAFCASS Legal Services)
Intervener (The Grandparents' Association)
Charles Hale
Rebecca Foulkes
(Instructed by Freemans Solicitors)
Heard on 25 June 2012
LORD PHILLIPS, DELIVERING THE JUDGMENT OF THE COURT
It is rare for the Supreme Court to entertain an appeal that relates exclusively to costs, but this appeal raises an important issue of principle in relation to the liability of a local authority to pay the costs of a party to care proceedings.
The proceedings related to two children, whose parents were separated. The children made allegations of sexual abuse by their father and six other men in which the father's parents ("the grandparents") had colluded. These allegations were included by the appellant ("the Council") in the schedule of matters relied upon in the care proceedings as meeting the threshold criteria for a care order under section 31(2) of the Children Act 1989. The grandparents were joined as interveners, as were five of the six men. The judge conducted a discrete fact-finding hearing which occupied a total of five and a half weeks between February and December 2009. The lengthy findings that he then made exonerated the grandparents and five of the other six interveners.
Four of the five men who intervened qualified for legal aid (the fifth represented himself), but the grandparents' relatively modest income disentitled them from this. The grandfather was aged 67. He is a retired fireman. The grandmother was aged 63 and worked, as she still does, as a part time bookkeeper. His pension and her earnings together amount to about �25,000 a year. The grandparents borrowed �55,000 from a building society, of which they spent �52,000 on legal advice and representation at the hearing. They cannot hope to pay this off in less than 15 years. In these circumstances the grandparents applied for an order that the Council pay their costs.
It was and is common ground that the Council could not be criticised for advancing in the care proceedings the allegations made against the grandparents. The judge, His Honour Judge Dowse, summarised the basis of their application for costs as based "on the apparently inequitable fact that they have largely succeeded in defending the allegations made against them but must bear their own costs". The judge dismissed their application. He did so on the basis that it was not usual to order costs in a child case against a party unless that party's conduct has been reprehensible or its stance unreasonable. In support of that proposition the judge cited authorities that included the judgments of Wilson J in Sutton London Borough Council v Davis (No 2) [1994] 1 WLR 1317 and Wilson LJ in In re J (Costs of Fact-Finding Hearing) [2009] EWCA Civ 1350; [2010] 1 FLR 1893. The judge expressed the view that it was unacceptable that more and more people in the position of the grandparents were faced with "potentially life-changing allegations" without being able to gain some financial assistance from the State.
The grandparents appealed to the Court of Appeal, consisting of Wilson and Munby LJJ and Coleridge J. The appeal was allowed: [2010] EWCA Civ 1585. Wilson LJ gave the leading judgment. He held that Judge Dowse had failed to appreciate the true purport of his judgment in In re J, which was favourable rather than adverse to the grandparents' application for costs.
Permission to appeal to this Court was given on terms that, whatever the result, the grandparents' entitlement to recover their costs from the Council would not be disturbed. Permission to intervene was granted to the Children and Family Court Advisory and Support Service ("CAFCASS") and to the Grandparents' Association. It is a remarkable fact, and ironic in an appeal about costs, that all counsel are appearing pro bono. We would like to express our gratitude for the assistance that they have given.
On 6 April 2011 the Family Procedure Rules 2010 (SI 2010/2955) ("FPR") came into force. They apply to family proceedings in the High Court, County Courts and Magistrates' Courts. Part 28 deals with costs. It is common ground that Part 28 of FPR consolidates the previous law relating to costs, including the relevant provisions of the Family Proceedings Rules 1991 (SI 1991/1247) and that it does not change the law in relation to costs that is applicable to this appeal. In these circumstances it is sensible to consider the issues raised by this appeal within the context of those Rules.
FPR 1.2, which is new, requires the court to give effect to the overriding objective, which is defined in FPR 1.1, which provides:
"1.1 The overriding objective
(1) These rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly, having regard to any welfare issues involved.
(2) Dealing with a case justly includes, so far as is practicable�
(a) ensuring that it is dealt with expeditiously and fairly;
(b) dealing with the case in ways which are proportionate to the nature, importance and complexity of the issues;
(c) ensuring that the parties are on an equal footing;
(d) saving expense; and
(e) allotting to it an appropriate share of the court's resources, while taking into account the need to allot resources to other cases."
FPR 28.3 makes special provision for costs in financial remedy proceedings. Paragraph (5) provides that the general rule in financial remedy proceedings is that the court will not make an order requiring one party to pay the costs of another party. This is subject to paragraph (6) which permits the court to make such an order when it considers it appropriate to do so because of the conduct of a party in relation to the proceedings. Paragraph (5) is a particular example of the departure in family proceedings from the general rule applicable in civil proceedings that "the unsuccessful party will be ordered to pay the costs of the successful party": CPR 44.3(2)(a).
FPR 28.1 provides that "The court may at any time make such order as to costs as it thinks just". This is not an unfettered discretion, for FPR 28.2 makes applicable to family proceedings, other than financial remedy proceedings, the majority of the rules in relation to costs of the CPR. The most significant of the rules excluded is the general rule that costs follow the event, quoted above in CPR 44.3(2). In the context of this appeal, the most relevant of the rules that are applicable are included in the following provisions of CPR 44.3:
"(4) In deciding what order (if any) to make about costs, the court must have regard to all the circumstances, including�
(a) the conduct of all the parties;
(b) whether a party has succeeded on part of his case, even if he has not been wholly successful; and
(c) any payment into court or admissible offer to settle made by a party which is drawn to the court's attention, and which is not an offer to which costs consequences under Part 36 apply.
(5) The conduct of the parties includes�
(a) conduct before, as well as during, the proceedings and in particular the extent to which the parties followed the Practice Direction (Pre-Action Conduct) or any relevant pre-action protocol;
(b) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;
(c) the manner in which a party has pursued or defended his case or a particular allegation or issue; and
(d) whether a claimant who has succeeded in his claim, in whole or in part, exaggerated his claim."
(4)(b) is relevant in relation to a regime where the general rule in (2)(a) applies. For this reason we do not see that it has any direct relevance to family proceedings. (4)(c) can have no relevance to public law proceedings and can thus be disregarded in the present case. The other rules are simply examples of circumstances that will be relevant when considering the result that justice requires in the individual case. In family proceedings, however, there are usually special considerations that militate against the approach that is appropriate in other kinds of adversarial civil litigation. This is particularly true where the interests of a child are at stake. This explains why it is common in family proceedings, and usual in proceedings involving a child, for no order to be made in relation to costs. The reasons for departing from the principle that costs normally follow the event differ, however, depending upon the nature of the family proceedings. On this appeal it is necessary to identify the policy considerations that should inform the approach to costs that is required in the interests of justice in care proceedings.
The Court has been referred to a number of authorities dealing with costs in family proceedings. In order to see the wood from the trees it is helpful to remove from the forest the timber that does not bear on the issues raised by this appeal. The following reasons for not awarding costs in family proceedings are not relevant:
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i) In ancillary relief proceedings each party's liability for costs will be taken into consideration when making the substantive award. This approach has the advantage of discouraging the parties from running up unnecessary costs�see Baker v Rowe [2009] EWCA Civ 1162; [2010] 1 FCR 413, paras 20 to 23 per Wilson...
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