Re T (Children) (Costs)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Wilson,Lord Justice Munby,Mr Justice Coleridge |
| Judgment Date | 18 November 2010 |
| Neutral Citation | [2010] EWCA Civ 1585 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2010/1523 |
| Date | 18 November 2010 |
[2010] EWCA Civ 1585
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM KINGSTON-UPON-HULL COUNTY COURT
LOWER COURT No KH08C09019
His Honour Judge Dowse
Before: Lord Justice Wilson
Lord Justice Munby
and
Mr Justice Coleridge
Case No: B4/2010/1523
Mr Simon Hirst (instructed by Sandersons, Hull) appeared on behalf of the Appellants, the paternal grandparents.
Miss Janet Bazley QC and Miss Liz Shaw (instructed by Hull's Legal & Democratic Services) appeared on behalf of the First Respondents, the local authority.
Mr Gavin Button (solicitor-advocate, Williamsons, Hull) appeared on behalf of the Second Respondent, the father.
Lord Justice Wilson:
Paternal grandparents appeal against the refusal of His Honour Judge Dowse, in the Kingston-Upon-Hull County Court on 7 May 2010, to make an order for costs in their favour against Kingston-Upon-Hull City Council ("the local authority"). The refusal of the order was made in the course of care proceedings brought by the local authority in relation to two of the grandchildren of the appellants, namely a boy who is now aged 13 and a girl who is now aged nine.
The proceedings are, I believe, still pending. The unsuccessful application of the grandparents for an order for costs was made in the wake of a mammoth judgment of the judge, running to 2719 lines set across 81 pages. The judgment reflected the judge's conclusions following a bespoke fact-finding enquiry which had lasted for no less than five and a half weeks, spread unfortunately between February and December 2009.
The judge's enquiry was precipitated by allegations of sexual abuse and other abuse made by the grandchildren against a number of adults including, in particular, their father but also the grandparents. The grandparents were two of, I believe, eight adults who, prior to the start of the fact-finding hearing in February 2009, were joined as interveners thereto. There is a minor dispute before us between the grandparents and the local authority as to whether the grandparents actively sought to become interveners in the proceedings or whether they acquiesced in an application on the part of the local authority that they should become parties. I have always been of the view, perhaps only instinctively, that the term "intervener" is apt to describe an additional party joined on his own application and that the word "respondent" is apt to describe an additional party added otherwise than on his own application. I confess, however, that my researches this morning have failed to locate authority which supports my view. In truth the issue between the parties in this regard is of no consequence. The facts are that the grandparents became acquainted, I think initially by the police, that extremely serious allegations were made against them in care proceedings relating to the children and that it was clearly appropriate for the court to make them parties thereto in order to give them the widest opportunity to defend themselves against them. Although we have not seen the schedule of facts which the local authority requested the judge to find, it is agreed that the findings requested to be made against the grandparents were that they had been involved in causing physical, sexual and emotional harm to the children and had failed to protect them from abuse perpetrated upon them by the father and six of his acquaintances. This afternoon Miss Bazley QC, who represents the local authority in opposition to this appeal, agrees that, for example, were the allegations against the grandparents established in the care proceedings, it would be unlikely that they would be allowed anything other than supervised contact with any of their grandchildren.
The grandfather is aged 67 and is a retired fire-fighter. The grandmother is aged 63 and works part-time as a bookkeeper. They have exiguous capital and their income from pensions and from the grandmother's part-time work now amounts to about £25,000 per annum net.
The grandparents decided that they could not adequately defend themselves in person at the massive hearing which was soon to begin and that they should borrow from a building society in order to fund representation by one of the city's family solicitors. I assume that they own their house and that the borrowing was by way of mortgage upon it. At all events they borrowed £55,000 and the fees charged to them by the solicitors for advice and representation at the hearing amount to £52,000. The loan from the building society is repayable over 15 years at the rate of almost £6000 per annum. The difficulty which confronts the grandparents in making the necessary annual repayment needs no emphasis; they say, in my view convincingly, that, without the continued part-time earnings of the grandmother stretching long into the future, they would have no reasonable prospect of making the repayment and of also maintaining themselves even to a fairly basic level in addition to making the repayment.
In the event, by the long judgment, the judge did not find any of the allegations against the grandparents to be established. Nor did he consign the grandparents to a pool of possible perpetrators of the acts of which they had been accused. On the contrary, he "exonerated" them. Their status as parties to the proceedings was thereupon discharged.
Such was the background to an allegation to the judge on behalf of the grandparents that the local authority should pay their costs of and incidental to the proceedings. By a short written judgment dated 7 May 2010 the judge refused their application.
It was and is common ground that it was appropriate for the local authority to invite the court to determine the allegations against the grandparents; and that the way in which they conducted them the way in which the local authority conducted themselves during that hearing cannot be criticised.
It was and is also agreed that, although many of the principles in relation to costs set out in CPR Parts 43 and 45 apply to costs in family proceedings by virtue of Rule 10.27(1) of the Family Proceedings Rules 1991, there is an important exception. The exception, provided by Rule 10.27(1)(b) thereof, is that the general rule in CPR 44.3(2)(a) that the unsuccessful party will be ordered to pay the costs of the successful party does not apply to family proceedings.
But, in reaching his decision, the judge went further. The judge referred to a decision of this court, as it happens one to which I contributed, in Re J (Costs of Fact Finding Hearing) [2009] EWCA Civ 1350, [2010] 1 FLT 1893. The judge cited it in order to extract from it what I have said in [14], as follows:
"14. In Sutton London Borough Council v Davis (No.2) [1994] 1 WLR 1317, [1994] 2 FLR 569, I sought to explain the reasons behind the general proposition that it was unusual to make an order for costs in children cases. I said, at 1319 and 570H- 571C respectively, as follows:
'Where the debate surrounds the future of a child, the proceedings are partly inquisitorial and the aspiration is that in their outcome the child is the winner and indeed the only winner. The court does not wish the spectre of an order for costs to discourage those with a proper interest in the child from participating in the debate. Nor does it wish to reduce the chance of their co-operation around the future life of the child by casting one as the successful party entitled to his costs and another as the unsuccessful party obliged to pay them. The proposition applies in its fullest form to proceedings between parents and other relations; but it also applies to proceedings to which a local authority is a party… But the proposition is not applied where, for example, the conduct of a party has been reprehensible or the party's stance has been beyond the band of what is reasonable.'"
The judge then quoted a passage to the same effect in the decision of Cazalet J in Re M (Local Authorities Costs) [1995] 1 FLR 533, at 541C-E, and concluded that, in that it had...
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