Case No. FA-2022-000035

Rules (applied by the Family Procedure Rules r.28.2) and s.51(3) of the Senior Courts Act 1981 but no other rules and no authorities. He was not referred by Counsel to the full range of authorities to which I have been referred, but the position statements did refer to the decisions of Re T, and the judgments of Cobb J, Lieven J and Keehan J in HB v PB, A Local Authority v A Mother and Re A, B, C, D, E and F respectively (all below). He was also referred by the parties to Re M (Intractable Contact Dispute: Interim Care Order) [2003] EWHC 1024 (Fam) in which Wall J stated, “I cannot require the Local authority to take proceedings”. 18.Section 51(1) and (3) of the Senior Courts Act 1981 provide that:(1)Subject to the provisions of this or any other enactment and to rules of the court, the costs of an incidental to all proceedings in (a)…(ba) the family court;,…Shall be in the discretion of the court …(3)The court shall have full power to determine by whom and to what extent the costs are to be paid.19.Rule 46.2 of the CPR provides that:(1) Where the court is considering whether to exercise its power under section 51 of the Senior Courts Act 1981 (costs are in the discretion of the court) to make a costs order in favour of or against a person who is not a party to proceedings, that person must –(a) be added as a party to the proceedings for the purposes of costs only; and(b) be given a reasonable opportunity to attend a hearing at which the court will consider the matter further.(2) This rule does not apply –(a) where the court is considering whether to –…(ii) make a wasted costs order (as defined in rule 46.8) …20.The judge made plain his view that the Local Authority should have issued public law proceedings. He noted his view of the financial consequences of not doing so, namely that, in this case, the Applicants and the Respondent mother did not qualify for public funding and so had either to pay for representation or go without representation in contested proceedings. He noted that the “children’s guardian (represented of course) is supportive of the position of the applicants: “surely there must be a way to give them some financial support.”” 21.In setting out the history of events in his judgment, the judge noted a factual dispute about events on 28 May 2021 when the three youngest children left their mother’s care:“The older sister and her partner allege that the then social worker expressly asked them to collect the children from school. The local authority’s case is that it wished the father of the three older children to exercise his parental responsibility and take the children to his home for the weekend … I have not tried this difference in view, but in my view it does not matter. Whilst the circumstances in which the children came to move to the care of their older sister are in dispute in terms of the local authority’s role, there is no doubt but that the local authority was involved, wished the children to move from the care of their mother and would, following events on 28 May, not have permitted the children to remain in the care of their mother without themselves bringing public law proceedings.” [5]22.At paragraph [7] of his judgment the judge recalls the hearing on 12 August 2021,“The team manager from the local authority attended and impressed upon me that the public law outline process was being pursued and that care proceedings were highly likely to follow.”23.The judge said that he applied the following principles to the application for costs against the Local authority (a non-party to the proceedings):“a) Orders that non-parties should pay the costs of litigation are permissible under section 51(3) of the Senior Courts Act 1981.b) Such orders are rare and only made in exceptional circumstances.c) The key consideration is the conduct of the non-party against whom the order is sought.d) It is not simply a question as to whether the conduct of the non-party can be criticised. A further key question is the effect of that conduct in terms of the impact on legal costs on the parties to the case.” [12]24.At [13] the judge said,“In my judgment the local authority, holding the concerns it did and having been instrumental in the 3 younger children moving and remaining away from their mother should have instituted public law proceedings in late May or early June immediately after what it alleges was the violent incident at the mother’s home. It was instrumental in then securing the removal of the children from the mother’s care. It knew the mother opposed this move. Whether that removal was to the care of the father or the older sister makes no difference. Whether the local authority believed the removal would be temporary or not makes no difference. This is because the local authority was aware within a short period that the children were with the older sister and it is clear that it wished that position to continue in the long-term and not just temporarily. The local authority at that stage believed the threshold criteria were met, and that it would highly probably be instituting care proceedings. It so informed the court.”25.The judge concluded at [16] that the Applicants had been “placed in this position because the local authority no longer wished to see the children in the care of the mother.” Of the Respondent mother’s position, he said at [17],“She has lost the care of her children as a result of local authority – State – intervention. The State must ensure a fair trial for her. She has not obtained and apparently does not qualify for legal aid. I do not see how in current circumstances any trial could be fair to her unless she has an opportunity to be represented – as the system within care proceedings would provide for her.”26.The judge held,“In the circumstances, it is my judgment that all relevant considerations point in the same direction. The local authority must pay for the representation of the applicants and the mother.” [18]Grounds of Appeal and Submissions27.In her well-constructed submissions for the Local Authority, Ms Duxbury, who did not appear below, put forward six grounds of appeal. In short, they were that the judge:i)Wrongly based his evaluation of the Local Authority’s conduct on a mistaken recollection that at the hearing on 12 August 2021 they had impressed upon him that public law proceedings were “highly likely” to follow.ii)Failed to consider any evidence in relation to a factual dispute as to the circumstances of the children becoming cared for by the Applicants and yet took those circumstances into account when assessing the Local Authority’s conduct.iii)Wrongly concluded that the conduct of the Local Authority justified the making of the costs order in the absence of any evidence that they had acted improperly, unreasonably or negligently.iv)Failed to consider why it was just in all the circumstances to make the costs order.v)Wrongly made a costs order (past and future) without information as to the extent of the costs involved.vi)Wrongly used the costs order to ensure that the parties’ litigation was funded “through the back door”.28.The Applicants acted in person in the appeal. They provided the court with a well written response supporting the costs order under appeal. They submitted that the Local Authority’s conduct had been reprehensible in bringing about the removal of the children from M to them and then in not issuing public law proceedings. They had been advised by a social worker to collect the children from their schools on 28th May 2021 and take them to their home and had later been advised by a social worker to issue private law proceedings. They had then effectively been left bearing the costs of looking after the children, including moving to a larger home, and of contested private law proceedings. They told the court that the costs of the “complex and lengthy private law proceedings” were “exceptionally very high.” The outcome was financially damaging to them and therefore detrimental to the children they were caring for. It had been brought about by pressure from the Local Authority which constituted unreasonable conduct of the kind that the courts had recognised could justify a costs order in proceedings concerning the welfare of children. 29.For the Children’s Guardian, Mr Martignetti, who again did not appear in the court below, did not dispute that the Children’s Guardian had supported the application for a non-party costs order at the December hearing before the judge. However, on appeal, the Children’s Guardian adopted a neutral position. The LawAppeals30.FPR 30.12(3) provides that an appeal may be allowed where the decision was wrong or unjust for serious procedural irregularity. 31.The court may conclude a decision is wrong or procedurally unjust due to: i) an error of law; ii) a conclusion on the facts which was not open to the judge on the evidence: Royal Bank of Scotland v Carlyle [2015] UKSC 13, 2015 SC (UKSC) 93. iii) failure to give due weight to a matter of particular relevance, or undue weight given to some irrelevant matter: B-v-B (Residence Orders: Reasons for Decision) [1997] 2 FLR 602. iv) procedural irregularity rendering the decision unjust: Re S-W (Care Proceedings: Case Management Hearing) [2015] 2 FLR 136. v) exercise of a discretion in way which was outside the parameters within which reasonable disagreement is possible: G v G (Minors: Custody Appeal) [1985] FLR 894. 32.The function of the appellate court is to determine whether the judgment below is sustainable. In Re F (Children) [2016] EWCA Civ 546 Munby P summarised the approach as follows: "Like any judgment, the judgment of the Deputy Judge has to be read as a whole, and having regard to its context and structure. The task facing a judge is not to pass an examination, or to prepare a detailed legal or factual analysis of all the evidence and submissions he has heard. Essentially, the judicial task is twofold: to enable the parties to understand why they have won or lost; and to provide sufficient detail and analysis to enable an appellate court to decide whether or not the judgment is sustainable. The judge need not slavishly restate either the facts, the arguments or the law. The task of this court is to decide the appeal applying the principles set out in the classic speech of Lord Hoffmann in Piglowska v Piglowski [1999] 1 WLR 1360. I confine myself to one short passage (at 1372): "The exigencies of daily court room life are such that reasons for judgment will always be capable of having been better expressed. This is particularly true of an unreserved judgment such as the judge gave in this case … These reasons should be read on the assumption that, unless he has demonstrated the contrary, the judge knew how he should perform his functions and which matters he should take into account. This is particularly true when the matters in question are so well known as those specified in section 25(2) [of the Matrimonial Causes Act 1973]. An appellate court should resist the temptation to subvert the principle that they should not substitute their own discretion for that of the judge by a narrow textual analysis which enables them to claim that he misdirected himself." 33.The appellate court should be slow to interfere with findings of fact - Fage UK Ltd & Anor v Chobani UK Ltd & Anor [2014] EWCA Civ 5.Costs Orders Against Non-Parties - Generally34.Cobb J reviewed the principles applicable on an application for a non-party costs order against a Local Authority in HB v PB, OB and LB of Croydon [2013] EWHC 1956 (Fam). Cobb J noted the wide discretion afforded by s. 51(3) of the Senior Courts Act 1981 and that Rule 28.1 of the FPR 2010 imports aspects of the CPR to costs in family proceedings. Those include CPR r. 46.2 (above). He then noted the paucity of authority on how the court should exercise its wide discretion in family cases to make orders against non-parties (other than lawyers) but found assistance from the authorities of Symphony Group Plc v Hodgson [1993] 4 All ER 143, CA and Globe Equities Ltd v Globe Legal Services Ltd [1999] BLR 232. 35.In Symphony Group Plc Balcombe LJ, with whom Staughton and Waite LJJ agreed, set out guidance on non-party costs orders. The guidance at pages 192H -194D included,“(1) An order for the payment of costs by a non-party will always be exceptional … The judge should treat any application for such an order with considerable caution.…(4)An application for payment of costs by a non-party should normally be determined by the trial judge.(5)The fact that the trial judge may in the course of his judgment in the action have expressed views on the conduct of the non-party constitutes neither bias nor the appearance of bias.…(9) The Judge should be alert to the possibility that an application against a non-party is motivated by resentment of an inability to obtain an effective order for costs against a legally aided litigant…”36.In Globe Equities Ltd, Morritt LJ warned against elevating a requirement that the circumstances are “exceptional” into a precondition to the exercise of the power,“Ultimately the test is whether in all the circumstances it is just to exercise the power conferred by subsections (1) and (4) of the Supreme Court Act 1981 [as it was then called] to make a non-party pay the costs of the proceedings. Plainly in the ordinary run of cases where the party is pursuing or defending the claim for his own benefit through solicitors acting as such there is not usually any justification for making someone else pay the costs. But there will be cases where either or both these two features are absent. In such cases it will be a matter for judgment and the exercise by the judge of his discretion to decide whether the circumstance relied on are such as to make it just to order some non-party to pay the costs. Thus, as it seems to me, the exceptional case is one to be recognised by comparison with the ordinary run of cases not defined in advance by reference to any further characteristic.”37.Symphony Group Plc v Hodgson (above) was considered in the more recent case of Deutsche Bank AG v Sebastian Holdings Inc & Anor [2016] EWCA Civ 23 when Moore-Bick LJ said at [17 and 18]“A number of points emerge from that case. First, we think it is clear that all three members of the court assumed that the procedure to be adopted for deciding whether a third party should bear all or part of the costs of the litigation should be summary in nature, in the sense that the judge would make an order based on the evidence given and the facts found at trial, together with his assessment of the behaviour of those involved in the proceedings. Second, in order to justify the adoption of a summary procedure the third party must have had a close connection of some kind with the proceedings. Staughton and Balcombe L.JJ. both emphasised that the court should not make an order for costs against a third party unless it is just and fair that he should be bound by the evidence given at trial and the judge's findings of fact. Whether that is so in any given case will depend on the nature and degree of his connection with the proceedings.“Third, we do not think that the court was seeking to do more than provide an indication of the kind of factors that judges should take into account, as appropriate in the particular cases before them, when asked to make an order of this kind. Factors such as failing to join the person concerned as a party to the proceedings or failing to warn him that an application for costs may be made against him may in some cases weigh heavily against adopting a summary procedure, but each case has to be considered on its own merits in order to ascertain whether the third party will suffer an injustice if he is held bound by the evidence and findings at the trial. Decisions made on applications of this kind since Symphony v Hodgson, to many of which we were referred, only serve to illustrate the wide range of circumstances in which orders for costs have been sought and made against third parties.”38.I also have regard to Dymocks Franchise Systems (NSW) Pty Ltd v Todd and ors (No. 2)(New Zealand) [2004] UKPC 39 in which the Board assumed that the non party had to have caused the costs to be incurred - see [18] to [20].Non-Party Costs Orders in Family Cases Concerning the Welfare of Children39.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….”Costs Orders against Local Authorities44.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.”Guidance from the Authorities46.Having regard to the authorities it seems to me that the following guidance applies to non-party costs orders in private family proceedings concerning the welfare of children:i)The Court has a wide discretion to make costs order including against non-parties but an application for a costs order against a non-party should be treated with caution and such an order will be exceptional by comparison with the ordinary run of cases.ii)A non-party costs order should only be made if it is just to do so in all the circumstances. iii)In considering whether a non-party costs order is just, the court should keep in mind that in the ordinary run of family cases concerning the welfare of children, inter-party costs orders are not made.iv)The circumstances justifying a non-party costs order are not closed but where the conduct of a non-party is relied upon as the basis for making such an order, the non-party must have been guilty of reprehensible behaviour or unreasonable conduct in the proceedings.v)In considering whether the behaviour of a non-party Local Authority was reprehensible, or its conduct within the proceedings was unreasonable, regard must be had both to the powers entrusted to and the obligations of Local Authorities and the finely balanced judgments that Local Authorities may have to make in exercising those powers and fulfilling those obligations.vi)The non-party should have a close connection with the proceedings such that it is fair that they are bound by the findings made in the substantive proceedings.vii)The circumstances which should be taken into account include the financial consequences to the potential costs recipients of the acts or omissions of the non-party. If the potential costs recipients would have incurred the same financial liabilities in any event then it would be unjust to make a non-party costs order. Hence, ordinarily, the court should have regard to the amount of costs sought to be recovered from the non-party and consider whether there is a causal connection between those costs and the non-party’s acts or omissions.viii)A non-party may well suffer injustice if not warned that an application or costs may be made against them.ix)A non-party should be joined as a party for the purposes of the costs application only and be given a reasonable opportunity to attend a hearing at which the court will consider the matter further – CPR r.46.2(1).x)The judge who has determined issues in the case (at a finding of fact hearing or a final hearing) should be the judge who determines an application for a non-party costs order.xi)The procedure for determining the application should be summary in nature in that the judge should base their decision on the evidence given and findings made in the substantive proceedings.xii)A non-party costs order should not be used as a device to circumvent other rules or provisions concerning the funding of advice or representation.47.It seems to me that this guidance, taken from the authorities, provides consistency in approach in relation to inter-party costs, wasted costs against legal representatives, and non-party costs orders in private proceedings concerning the welfare of children. The same guidance might also apply to public law proceedings, but this appeal judgment is concerned with private proceedings.Decision Procedure48.The Local Authority was not joined as a party to the proceedings for the issue of the costs of application. They ought to have been joined for the purposes of costs only as required by CPR r.46.2(1)(a). The judge noted that “no-one, so far as I am aware, takes any point that Rule 46.2 … has not complied with.” CPR r.46.2(1)(b) was complied with in that the non-party was given an opportunity to attend the costs hearing. As it happens, although not joined as a party, the Local Authority had access to the relevant documents and had attended previous hearings. No prejudice was caused to the Local Authority by not being joined as a party, no point is taken by the Local Authority on appeal, and I shall not determine the appeal on the basis of a procedural irregularity in not joining the Local Authority for the purpose of costs.49.The guidance from the authorities, summarised above, indicates that decisions about non-party costs orders ought to be made after the court has heard evidence and made findings sufficient to inform it of all the relevant circumstances that might justify making such an order. Usually this will be after a finding of fact hearing or final hearing. In this case the judge made the order, including for prospective costs, before receiving any evidence at all from the parties and having made no determinations on disputed facts. To do so was not contrary to the rules of court and so I do not find it to have been a procedural irregularity sufficient to overturn the decision under appeal, but it did have consequences for the judge’s approach to his decision on costs.