Case No. FA-2022-000035

39.The appellate authorities already reviewed concerned civil claims of a commercial nature, not private or public proceedings concerning the welfare of children. Ms Duxbury has drawn my attention to three such family cases.40.In HB v PB, OB and LB of Croydon (above) Cobb J made a non-party costs order against the Local Authority having found that it had been guilty of failings of a “systematic nature” in relation to a s. 37 report which had resulted in the abandonment of a three day fact-finding hearing and consequent delay, with financial and emotional cost to the parties. He made the order after the conclusion of the re-listed finding of fact hearing. The costs awarded were not related the decision made by the Local Authority but to inadequacies in the preparation and content of the report that caused wasted costs incurred by the parties. The Local Authority had been made a party to the proceedings on the issue of costs only, as is required by CPR 46.2(1)(a).41.More recently, in A Local Authority v Mother & Ors [2021] EWHC 2794 (Fam), Lieven J considered an application for costs against intermediaries who had been involved in public law proceedings. The application had been made by the Local Authority, parents and Children’s Guardian. The intermediaries, whose conduct was alleged to have resulted in the abandonment of a hearing with consequential costs implications for the parties, were joined to the proceedings for the purpose of the costs determination. At [24] of her judgment, Lieven J had regard to the tests relevant to applications for wasted costs orders against legal representatives under s 51(6) of the Senior Courts Act 19891, as set out in Ridehalgh v Horsefield [1994] Ch 205, namely, (1) did the legal representative act improperly, unreasonably or negligently; (2) did that conduct cause the applicant unnecessary costs and (3) was it just in all the circumstances to order costs. In Re A,B,C,D,E, and F [1019] EWHC 406 (Fam) Keehan J made a non-party costs order against an expert whose “serial failures to comply with court orders” had resulted in costs consequences for the parties.42.In all three of those family cases in which non-party costs orders were made, there were discrete and identifiable costs consequences of unreasonable conduct in the proceedings by a non-party. Delay in proceedings and avoidable costs had been caused directly by serious failings by the non-parties. Nevertheless, Ms Duxbury on behalf of the Local Authority, accepts, I think rightly, that whilst unreasonable conduct in the proceedings, or reprehensible behaviour, by a non-party might often constitute exceptional circumstances justifying a non-party costs order, there were other possible circumstances that might also do so. Lady Hale said so in Re S (A Child) (Costs: Care Proceedings) [2015] UKSC 20 at [30] to [32]. Lady Hale also said that Local Authorities should not be in any worse position than private parties in proceedings in relation to costs just because they may have deeper pockets. I can see no reason why the same principles should not apply to costs orders against non-parties, including Local Authorities.43.A feature of family cases which requires particular consideration, and which marks them out from most civil claims, is that in the “ordinary run” of cases concerning the welfare of children, successful parties have no expectation of costs orders being made – Re T Re T (Care Proceedings Costs) (Cafcass Intervening) [2012] UKSC 36 and Re S (above). In Re T, Lord Phillips, delivering the judgment of the court, held at [44] that,“… we have concluded that the general practice of not awarding costs against a party, including a local authority, in the absence of reprehensible behaviour or an unreasonable stance, is one that accords with the ends of justice….”