Case No. FA-2022-000035

44.There are two other first instance authorities of relevance to the present case. In Re A, B, C, D, and E [2018] EWHC 1841 (Fam) Knowles J considered and dismissed an application for costs against a Local Authority that had changed its position in relation to public law proceedings part way through a hearing. She observed at [57],“[The Local Authority] would not be the first or the last local authority – or indeed, party - to recognise at a late stage that either its threshold case or other aspects of its case were untenable. To visit costs on a local authority in such circumstances would be akin to saying that any change of mind by a party during the course of children litigation was an admission of past error requiring a punitive response from the court. As a matter of public policy, such a stance by the court would render unreasonable the finely balanced judgments many local authorities have to take both before and during children litigation and undermine the general proposition that an order for costs is unusual in such proceedings. ”45.In HB v A Local Authority (Wardship Costs Funding Orders) 2017 EWHC 524, MacDonald J, hearing an application under the court’s inherent jurisdiction, refused to make a costs funding order against a local authority requiring it to fund legal advice and representation for a parent in wardship proceedings brought by the local authority where the parent had lawfully been refused legal aid. At [102] MacDonald J held that in addition to contradicting the principle that authority for public expenditure requires clear statutory authority,“… I am satisfied that to make the order sought by the mother would contradict the principle that a general power cannot be used to circumvent a clear statutory code. In circumstances where the Legal Aid Agency has taken a lawful decision by reference to a lawful and comprehensive statutory scheme to refuse the mother’s application for legal aid, an order under the inherent jurisdiction of the court for public funding from an alternate public authority for the same purpose would plainly constitute an attempt to side-step a clear statutory code using a general power.”