Re W (A Child)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Wall |
| Judgment Date | 03 May 2006 |
| Neutral Citation | [2006] EWCA Civ 529 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2005/0912 |
| Date | 03 May 2006 |
[2006] EWCA Civ 529
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION:
MR JUSTICE HEDLEY
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Laws
Lord Justice Wall and
Lord Justice Lloyd
Case No: B4/2005/0912
Jeremy Hyam (instructed by Messrs Leigh Day & Co) for the Appellants
David Lock (instructed by Messrs Mills & Reeve) for the Respondent
This is the judgment of the court.
Preliminary issues
This is a further chapter in the extensive proceedings between the Portsmouth Hospital NHS Trust (the Trust) and Darren and Deborah Wyatt in relation to their daughter Charlotte, born on 21 October 2003. Mr. David Lock, on behalf of the Trust, now seeks an order for costs against Mr. and Mrs. Wyatt in relation to their application for permission to appeal against Hedley J's refusal on 21 April 2005 to discharge declarations relating to Charlotte's treatment which he had made on 8 October 2004. He also seeks an order for costs in relation to their appeal (for which Hedley J had given permission) against his decision that the declarations made on 21 April 2005 should be expressed to remain in force without limit of time.
We heard argument on the permission application and the appeal on 25 August 2005. In the course of his submissions, Mr. David Wolfe, for Mr. and Mrs. Wyatt described the permission application as raising the question of the correctness of the judge's perception of what was in the best interests of Charlotte ("the best interests question") and the appeal as raising "the timing question". We adopted those designations in our subsequent judgment. The hearing lasted the whole day. At its conclusion we announced our decision, but reserved our reasons, which we handed down on 12 October 2005. In summary, we dismissed both the application for permission and the substantive appeal. However, we expedited a review of the declarations which the judge had himself anticipated, and for which he had set aside a period of 30 minutes for directions in October 2005. Our judgment, [2005] EWCA Civ 1181, is reported at [2005] 1 WLR 3995.
Mr. Lock made it clear at the outset of his argument in the present hearing that the Trust's application for costs was made under section 11(1) of the Access to Justice Act 1999 (the 1999 Act) . In other words, it was not designed to impose any financial liability on Mr and Mrs Wyatt personally. The need for an order for costs against Mr and Mrs Wyatt was, however, he argued, a necessary prerequisite for an application which the Trust wished, in due course, to make to a costs judge, namely that the Legal Services Commission (LSC) , which is funding Mr and Mrs Wyatt in this litigation, should stand behind its clients and pay the Trust's costs of the Wyatts' unsuccessful permission application and appeal to this court against Hedley J's order of 21 April 2005.
In his initial skeleton argument, and for an identical reason, Mr. Lock also sought an order that Mr and Mrs. Wyatt should pay the Trust's costs incurred in their unsuccessful application for permission to appeal to this court against a previous and provisional order made by Hedley J on 28 January 2005. The Wyatts' application for permission to appeal against that order was heard, on notice to the Trust and to Charlotte's guardian, by this court in a constitution comprising Thorpe, Potter and Wall LJJ on 9 February 2005, and was refused. On that occasion, however, no application of any kind was made by the Trust for an order for its costs, and the court made no order for costs apart from a direction that there should be a detailed assessment of Mr. Wyatt's costs in accordance with the Community Legal Service (Costs) Regulations 2000.
In these circumstances, Mr. Lock properly accepted in argument before us on 10 April 2006 that he could not reopen this court's decision to make no order for costs on 9 February 2005. His application was, accordingly, limited to the costs incurred by the Trust in resisting the application for permission and the appeal which we heard on 25 August 2005.
The Trust's application was vigorously opposed by Mr. Jeremy Hyam on behalf of Mr and Mrs Wyatt. Having heard argument on 10 April 2006, we reserved judgment.
Overview
In our view, the question now before the court is very simple. The Trust's case is that it has been obliged to expend very substantial sums on this highly unusual litigation. Its primary function is caring for its patients, not litigation. Unlike a local authority, it does not have duties imposed on it by Statute requiring it, in certain circumstances, to institute legal proceedings.
Mr. Lock pointed out that it was not open to the Trust to seek an order against the LSC in relation to costs incurred in the court of first instance, since pursuant to regulation 5(3) (c) of the Community Legal Service (Cost Protection) Regulations 2000, such an order could only be made if the proceedings had been instituted by Mr. and Mrs. Wyatt, and the court was satisfied that the Trust would suffer financial hardship unless the order was made. Those restrictions did not, however, apply in the Court of Appeal.
Mr. Lock submitted that whatever the position as to costs at first instance, where no orders against Mr. and Mrs Wyatt had been sought, the Trust was successful before this court on 25 August 2005. It could not realistically expect to recoup any of its costs against Mr. and Mrs. Wyatt, who are publicly funded and, so far as the Trust was aware, impecunious. The Trust therefore sought an order for costs against them under section 11(1) of the 1999 Act relating to the permission application and to the appeal, for the purpose identified in paragraph 3 above.
Mr. Lock also made the point, although we think it at the periphery of the case, that if the Trust was denied the opportunity to obtain its costs of the 25 August hearing from the LSC, it might well end up paying, not only its own costs of successfully resisting the proceedings in this court, but half of those incurred by CAFCASS Legal, acting as Charlotte's guardian. Whilst we see this as a point going to the ultimate justice of the case, it is not a factor we weigh in the balance, since no such application was made by CAFCASS Legal at the conclusion of the hearing on 25 August 2005, and even if it were possible now for such an application to be made, it would be unlikely to be received by this court with any enthusiasm.
We had anticipated (since the Trust was not seeking to impose any personal liability on Mr and Mrs Wyatt) that an order for costs and a remission to the costs judge would be uncontentious. As the transcript of the discussion after we had announced our decision on 25 August 2005 makes clear, we adjourned the question of costs because of our uncertainty about the correct procedure. Laws LJ, in the course of the exchanges, enunciated the court's preliminary view succinctly when he said:
"Subject to my Lords, I am sure we would make the usual order intending that the Trust obtained its costs from the Legal Services Commission if that is thought right by whoever ultimately decides it."
In these circumstances, we had hoped and anticipated that the point could be resolved through submissions in writing. It was with some surprise, therefore, that on 10 April 2006 we were faced with a plethora of detailed submissions from both sides, which included the citation of numerous, and as it transpired, largely irrelevant authorities. Indeed, the exchange of submissions continued even after judgment had been reserved. Opposition from Mr and Mrs Wyatt having been mounted, however, we must resolve the points raised.
The regulatory scheme
Both the relevant statutory material, and guidance on the proper procedure to be followed when the court is considering making an order for costs against the LSC, are set out in detail in the decision of this court in R (on the application of Gunn) v Secretary of State for the Home Department ( Gunn) [2001] EWCA Civ 891, [2001] 1 WLR 1634. Although the citation from that case which follows is a lengthy one, we feel we can do no better than to repeat the analysis provided by the Master of the Rolls, Lord Phillips of Worth Matravers, giving the judgment of this court, in a constitution of which Pill and Keene LJJ were the other members.
To make the citation from Gunn more readily comprehensible, we reproduce the relevant section of the governing statute is section 11 of the 1999 Act which provides by sub-section (1) : -
Costs in funded cases
(1) Except in prescribed circumstances, costs ordered against an individual in relation to any proceedings or part of proceedings funded for him shall not exceed the amount (if any) which is a reasonable one for him to pay having regard to all the circumstances including—
(a) the financial resources of all the parties to the proceedings; and
(b) their conduct in connection with the dispute to which the proceedings relate
Section 11 of the 1999 Act also contains a Regulation making power, and the references to Regulations are as follows. In paragraphs [27] to [32] of the judgment in Gunn they are to the Community Legal Service (Costs) Regulations 2000 (the Costs Regulations) ; in paragraph [33] of the judgment they are to the Community Legal Service (Cost Protection) Regulations 2000 (the Cost Protection Regulations) .
The following is this court's summary of the regulatory scheme:—see [2001] 1 WLR 1634 at 1644: -
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