This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the child and members of her family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
Royal Courts of Justice
Strand, London, WC2A 2LL
Before :
THE HONOURABLE MR JUSTICE BAKER
IN THE MATTER OF THE SENIOR COURTS ACT 1981
AND IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF SO (A MINOR)
Between :
O | Applicant |
- and - | |
P | Respondent |
Mr Stephen Lyon (instructed by Thomson Snell & Passmore) for the Applicant
The Respondent was not present nor represented
Hearing dates: 16th February 2015
Judgment
The Honourable Mr Justice Baker :
This is an application for an order in wardship proceedings, or alternatively under the court’s inherent jurisdiction, which would have the effect of amending an existing injunction previously made in the wardship proceedings and extending its duration beyond the ward’s 18th birthday.
The young person who is the subject of the wardship proceedings, whom I shall call “S”, was born on 18th April 1997 and will therefore be 18 years old in April of this year. The proceedings, together with further proceedings under the Children Act 1989, initially under section 8 and subsequently schedule 1, have been continuing for most of her life, having been started as long ago as 1999. The extraordinary history is set out in detail in earlier judgments delivered by me, first on 5th August 2011 on the issue of jurisdiction in the schedule 1 proceedings (reported as O v P [2011] EWHC 2425 Fam) and subsequently, on 4th July 2014 at the conclusion of the schedule 1 proceedings (reported as O v P [2014] EWHC 2225 Fam) – see in particular paragraphs 2 to 50 of the latter judgment.
It is unnecessary for the purposes of this judgment to recite that narrative history again. Suffice to say that the central features of the background include the fact that S’s father
abducted S from the UK to Australia at the end of 1999 and retained her there unlawfully until she was recovered and returned to her mother’s care following proceedings under the Hague Child Abduction Convention;
was subsequently convicted in Australia on two occasions, in 2001 and 2006, of offences of incitement to solicit the murder of S’s mother;
is still serving his sentence in prison in Australia with an estimated release date of March 2018 (unless granted parole prior to that date);
continues to deny the offences for which he was convicted and
has unsuccessfully sought to challenge the validity of the convictions in the course of what appears to have been a campaign of litigation over a wide range of issues conducted from his prison cell in Australia.
Meanwhile the mother and S, in respect of whom of a series of non-molestation injunctions have been made within the wardship proceedings dating back to an order of Black J (as she then was) dated 14th June 2000, themselves moved some years ago to Australia, living at an address which, it was assumed, was unknown to the father. S has flourished in her mother’s care in Australia and has now embarked upon tertiary education, following the conclusion of the schedule 1 proceedings in the course of which I made a substantial order for her financial provision. Nonetheless, both the mother and S have continued to live under the shadow of the threats by the father to the safety of the mother and, indirectly, S.
At paragraph 127 of my judgment at the conclusion of the schedule 1 proceedings [2014] EWHC 2225 (Fam), I said
“Hanging over this whole case is the fact that the father has been convicted on two occasions of inciting the mother’s murder. I accept those convictions as evidence that the father did indeed incite her murder on two occasions. I further accept the mother’s evidence that he has threatened her on previous occasions, and that she has lived in constant fear of what he might do.”
In the course of hearing the application under schedule 1, I received evidence from the mother about this issue, which I summarised at paragraphs 129-131 of the judgment:
It is the mother’s case that she remains in fear of the father and that as a result her life, including her employment and earning capacity, has been very severely restricted. Having read her statement and listened to her in the witness box, I fully accept the mother’s evidence on this point. I have no doubt that she is genuinely fearful of the father and that this fear has circumscribed her life, and that of her daughter, for the last fourteen years. Her anxiety was evident throughout the hearing, and in particular on two occasions – when describing to me in outline what the father had done by way of incitement to murder her on the second occasion and, secondly, when it became apparent in the course of Miss Willbourne cross examination, through the production of recent photographs obtained by or on behalf of the father, that he is, or may well be, aware of her current location.
In oral evidence, the mother gave a vivid account of her current circumstances: -
“There is nothing normal about my life. One comes to accept it as normal but it is not normal. I have for as long as possible tried to avoid being found by [the father]. I need to be around to raise my child. Nothing is normal. I may not be the same person as I was then. Work becomes incredibly difficult. In terms of living arrangements you have to change as many things as you can. You are not open with people when you make friends. On a day to day basis you live in fear. When a car stops outside that you don’t expect, the instant reaction is – “is it a bad person?” “do I need to run?” you learn to live with that, but it is always there. I don’t feel any less frightened than I did fourteen years ago.”
The situation has plainly had an impact on S which the mother also described in oral evidence in answer to questions from me:
“Judge: What has been the impact on her of knowing he has these convictions?
Mother: There is a big fear; and big, big fear factor. She gets worried that something may happen to mum, and to her mum is everybody.
Judge: Presumably you can’t keep secret the fact that there are measures to guard against the risk.
Mother: That’s right. I have had to start including her as to the knowledge of those things. She is a bright young girl and understands they need to be there.”
In the light of my findings, Mr Lyon on behalf of the mother now seeks an extension of the injunction ordered previously granted in the wardship proceedings, dating back to the order of 14th June 2000. Mr Lyon invites the court to make orders that will extend indefinitely beyond the conclusion of the wardship proceedings when S attains her 18th birthday on 18th April 2015.
As before, the court process has been impeded by the fact that the father is incarcerated in prison in Australia. Efforts at exploring the possibility of establishing a video or telephone link have been unsuccessful. These difficulties arose in the earlier proceedings when under schedule 1 and, as a result, I took steps to ensure that counsel then instructed on Mr P’s behalf had an opportunity to take instructions on the evidence given (as described in paragraph 51 of the judgment.) In this case, a further complication arose because the father was no longer represented. I record, therefore, that to ensure that he had had a fair opportunity to put his case, I gave directions for the service of a bundle prepared for the hearing on the father, and subsequently adjourned the hearing of this application, originally listed on 16th December 2014, to ensure that he had a fair and proper opportunity to prepare a skeleton argument setting out his response. The father has subsequently filed a full skeleton argument, and supporting documentation, and from those documents, and the various emails to the court sent by him (via his former solicitor) I conclude that he has indeed seen the full bundle and furthermore that he has had a fair opportunity to put his case.
The issues identified by Mr Lyon in his skeleton argument for determination at this hearing are as follows:
Can any modified orders made before the expiration of the wardship be extended beyond S’s 18th birthday?
If not, can orders thereafter be made in any event pursuant to the inherent jurisdiction or at common law?
Is the fact that S and her mother are habitually resident in Australia fatal to the exercise of the court’s jurisdiction?
What order should the court make in all the circumstances?
It is Mr Lyon’s primary submission that the orders made during the currency of the wardship proceedings made before the ward’s 18th birthday can be extended beyond that date. He submits that such a step can be taken “in order to preserve the integrity of the proceedings.” He cites in support of that proposition the earlier decisions of Sir John Arnold P in Re P (Minors) (Wardship: Surrogacy) [1987] 2 FLR 421 and of Scott Baker J in Re E (A Minor) (Child Abuse: Evidence) [1991] 1 FLR 420. In Re P, the issue concerned the preservation of the identity of twins born to a surrogate mother who then refused to give them up. The twins were warded and orders made preserving confidentiality, and the President continued those orders notwithstanding the termination of the wardship. In Re E, orders were made in wardship preserving the anonymity of a number of those involved during a fact-finding into allegations of sexual abuse of very young children. Those orders were continued following the discharge of the wardship. It was submitted before Scott Baker J that it would be a surprising void in the law were the court to have no power to grant an injunction whose effect continued after the discharge of the wardship proceedings and that such a void would be inconsistent with the court’s established inherent jurisdiction to protect minors. Scott Baker J concluded at page 455 F to G:
“In the absence of any provision to the contrary, any injunction would ordinarily terminate on the discharge of wardship proceedings. It is, however, open to the court, if it deems necessary to direct that an injunction made during the currency of wardship proceedings do continue after their discharge.”
In the alternative, Mr Lyons submits that after her 18th birthday the court will have jurisdiction to protect S under its jurisdiction in respect of vulnerable adults. It is submitted that S is a vulnerable adult as a result of the overwhelming evidence that the father would use her as a conduit to find her mother and make an attempt on the latter’s life. It is further submitted that S is also vulnerable because she is only beginning to understand her past of which she does not have a full and detailed knowledge, and is unaware of the extent of current and future risk to her and her mother. It is submitted that she is accordingly unable to make informed decisions about the risk both to her life and that of her mother were she to come into contact with the father.
Mr Lyon therefore prays in aid the authorities concerning the jurisdiction of the court to make orders for the protection of vulnerable adults, and, in particular, the decision of Munby J (as he then was) in Re SA [2006] EWHC 2942 (Fam). The context of that decision is summarised in the first two paragraphs:
“1. This case raises novel questions about the court’s inherent jurisdiction in relation to vulnerable adults. I have before me a vulnerable young woman who has just turned 18 and has therefore attained her majority. While she was still a child the court had exercised its inherent parens patriae and wardship jurisdictions to protect her from the risk of an unsuitable arranged marriage. The question is whether I have jurisdiction to continue that protection now she is an adult.
2. The question arises because expert evidence establishes that this young woman, although undoubtedly vulnerable, equally undoubtedly has the capacity to marry. In other words the case raises the question of whether the inherent jurisdiction in relation to adults can be exercised for the protection of vulnerable adults who do not, as such, lack capacity. In my judgment, the jurisdiction can be so exercised. And I propose to exercise the jurisdiction in this particular case, so that a young woman who remains just as vulnerable now she is an adult as she did when she was still a child, should not be suddenly deprived of the protection which the court has hitherto felt it necessary to afford her and which I believe is still very much required in her best interests.”
Munby J traced the origins and development of this jurisdiction in the case law, inter alia citing and echoing the words of Thorpe LJ in Re F (Adult: Court’s Jurisdiction) [2001] Fam 38 at page 53:
“It would in my opinion be a sad failure were the law to determine that [the court] has no jurisdiction to investigate and, if necessary, to make declarations as to T’s best interests to ensure that the protection that she has received belatedly in her minority is not summarily withdrawn simply because she has attained the age of 18.”
Amongst the many important observations in Munby J’s judgment, the following are of particular relevance to this case. First, the protective jurisdiction in relation to vulnerable adults is not confined to persons who lack capacity: see for example Re G (An Adult) (Mental Capacity: Court’s Jurisdiction) [2004] EWHC 2222 Fam per Bennett J. Secondly, “the inherent jurisdiction now, like wardship has been, is a sufficiently flexible remedy to evolve in accordance with social needs and a social values” per Singer J in Re SK [2004] EWHC 3202 (Fam). Thirdly, although, as Munby J illustrated (at paragraph 44 of his judgment) by reference to a range of previous authorities that the jurisdiction had hitherto been exercised in certain specific circumstances (namely in relation to issues of medical treatment; residence and contact; marriage, including forced marriage; and to restrain the publication of material damaging to the vulnerable person) this was, as he observed at paragraph 45,
“far from being an exhaustive description of the potential reach of the jurisdiction. New problems will generate demands and produce new remedies… Indeed, there is probably no theoretical limit to the jurisdiction.”
Accordingly, Mr Lyon submits that this court has jurisdiction to make an order to protect S in her vulnerable circumstances once she has attained the age of 18 years.
Further, Mr Lyon argues that the court has power to grant injunctive relief to protect the Article 6 and 8 rights of S and her mother and cites in support the decision of Dame Elizabeth Butler-Sloss P in Re X (A woman formally known as Mary Bell) and another v O’Brien and another) [2003] EWHC QB1101, in which the President granted an order contra mundum preventing the disclosure of the identities and addresses of Mary Bell (who had been convicted years earlier of manslaughter of two children) and her own daughter. Original injunctions had been granted but limited to the daughter’s 18th birthday but the President, balancing the respective rights under Articles 8 and 10, made an order extending the injunctions indefinitely.
Finally, in support of a paragraph of the draft order sought in this case, by which Mr Lyon seeks to prevent the disclosure of information likely to disclose the identities or addresses of S and her mother, relies on the earlier authority of Dame Elizabeth Butler-Sloss P in Venables and Thompson v News Group Newspapers and others [2001] EWHC QB32 in which, in granting indefinite orders to preserve the lifelong anonymity of the two killers of James Bulger, the President relied inter alia on the common law doctrine of confidence. Mr Lyon contends that, given the lengths which the court has gone to in order to protect the identities of S and her mother, this information falls within that doctrine.
In respect of the third question identified above – whether the fact that S and her mother are habitually resident in Australia is fatal to the exercise of the court’s jurisdiction – Mr Lyon submits that the wardship orders may be continued notwithstanding the fact that S and her mother are no longer living in this country. They were habitually resident in this country at the date on which the wardship proceedings were started (see discussion in my earlier judgment concerning jurisdiction reported at [2011] EWHC 2425 (Fam) at paragraphs 61-64). The court had jurisdiction at the start of the proceedings and that jurisdiction continues until the proceedings are concluded. (It should be noted that these principles are now reiterated in the jurisdictional rules set out in Council Regulation 2201/2003 [“Brussels II Revised”] but these proceedings, of course, were issued several years before that regulation came into force.)
In the alternative, Mr Lyon relies on the fact that both S and her mother are British nationals and contends that it is well established the court can exercise its inherent jurisdiction over any of its subjects, whenever they may be. He relies in particular on the discussion of this issue in the Supreme Court in Re A (Children) (Jurisdiction: Return of Child) [2013] UKSC60. In that case, as explained by Baroness Hale of Richmond in her judgment at paragraph 60, where, as here, the common law rules as to inherent jurisdiction in the High Court continue to apply, “there is no doubt that this jurisdiction can be exercise if the child is a British national, citing in support the decision in Hope v Hope (1854)De GM & G 328 , and Re P (GE) (An infant) [1965] Ch 568. Baroness Hale considered the observations of Thorpe LJ in Al-Habtoor v Fotheringham [2001] EWCA Civ 186 at paragraph 42, to the effect that the court should be “extremely circumspect” and “must refrain from exorbitant jurisdictional claims founded on nationality”, but concluded, at paragraph 63,
“In my view there is no doubt that the jurisdiction exists, in so far as it has not been taken away by the precisions of the 1986 Act. The question is whether it is appropriate to exercise it in the particular circumstances of the case.”
Her reference to the provisions of the 1986 Act were to the prohibitions of the exercise of the inherent jurisdiction specified in section 2 which preclude a court inter alia of making an order in the exercise of the inherent jurisdiction with respect to children so far as it gives care of a child to any person or provides for contact with, or the education of, a child. As in Re A, that prohibition does not apply in the current case.
In reply, Mr P acting in person has provided a detailed skeleton argument, with documents in support, in which he makes the following submissions.
First, he asserts that this court has no jurisdiction in Australia. Any orders made by this court have no authority and are incapable of service on the respondent as he is not within its jurisdiction. He cites in support decisions of the Family Court of Australia in the protracted litigation which he has conducted in that country in circumstances described in my 2014 judgment at paragraphs 33 – 50. He relies in particular on the decision of the Family Court of Australia delivered on 26th March 2013 (Bryan CJ, Faulkes DCJ and Finn J). It is true that on that occasion the Family Court of Australia, for reasons explained at paragraphs 118-141 of its judgment, decided to exercise jurisdiction in respect of the father’s application for parenting orders in respect of S, before concluding on the merits that it is not in S’s best interests for orders to be made. As I read the judgment, however, nothing was said by the Family Court of Australia to preclude this court from continuing to make orders within the warship jurisdiction .
Secondly, Mr P asserts, by reference to documents attached to his submissions, that the location of S and her mother and their current names are known to him and have been for some years. He contends that in the circumstances, the mother is “entirely wasting these courts’ resources by seeking extraneous orders of no effect”.
Third, he submits that the previous proceedings have all considered S’s welfare as a child and that “the court’s jurisdiction can only be invigorated once it is resolved that the child, to be an adult, is considered to be vulnerable in the long term”. He submits that there is no evidence that he has ever represented a danger to S. Rather, he asserts that his actions throughout have been to protect her from abuse due to the mother’s refusal to accept that the person she has lived with has a proven history of violence towards his own children.
Fourthly, Mr P challenges the submission made by Mr Lyon that there is authority to support the proposition that the court may extend injunctions made in wardship proceedings in these circumstances beyond the 18th birthday of the ward. He submits that the authorities relied on by Mr Lyon – Re P and Re E – both involve injunctions against the media and have no application to the current circumstances.
Fifth, Mr P submits that the decision of Munby J in Re SA is not authority for the proposition advanced by Mr Lyon that the court has jurisdiction to make orders under its inherent jurisdiction in respect of vulnerable adults, unless they are incapacitated. He draws attention, in particular, to the following passage from paragraph 79 of the judgment in that case:
“There is, however, in my judgment a common thread to all this. The inherent jurisdiction can be invoked wherever a vulnerable adult is, or is reasonably believed to be, for some reason deprived of the capacity to make the relevant decision, or disabled from making a free choice, or incapacitated or disabled from giving or expressing a real and genuine consent. The cause may be, but is not for this purpose limited to, mental disorder or mental illness. A vulnerable adult who does not suffer from any kind of mental incapacity may nonetheless be entitled to the protection of the inherent jurisdiction if he is, or is reasonably believed to be, incapacitated from making the relevant decision by reason of such things as constraint, coercion, undue influence or other vitiating factors.”
It is the father’s contention in this case that the current circumstances do not fall within the parameters of the inherent jurisdiction in respect of adults defined by the reported authorities, and in particular Re SA. He submits that, in this context, a vulnerable adult is one who is incapacitated and incapable of giving genuine consent. He submits that there is not a single assertion that S is vulnerable in that sense and indeed points out that the mother has herself described S as being “competent”. In those circumstances, he submits that this court has no power under its inherent jurisdiction over vulnerable adults to make the orders claimed in this case.
Sixth, Mr P invites the court to reject the submissions made by Mr Lyon that orders may be made either to protect the human rights of S or her mother on the basis of the decision in the Mary Bell case or in line with the decision in the Venables and Thompson case. Again, he submits that those authorities concerned applications for orders against the media and have no relevance to the present circumstances.
Seventh, he invites the court to reject the argument that jurisdiction to make orders to protect S and her mother in Australia arises by virtue of their British nationality. He relies on the dicta of Thorpe LJ in Al-Habtoor v Fotheringham, supra.
Finally, he submits that, in reality it is naïve to think that S is in some way ignorant about the circumstances of the past and to invoke that as a reason for extending protection. He points out that young people today have access to information via the internet much more readily than in the past, and that details of his criminal convictions are readily available via a simple Google search.
In all the circumstances, Mr P submits that “the appropriate forum for these matters to be decided is the only country with the jurisdiction – Australia.”
Discussion and Conclusion
I am in no doubt that the court has the power to grant the orders sought on behalf of the applicant and that an order should be made in this case. My reasons are as follows.
In my judgment, an order made during the currency of wardship proceedings may be extended following the 18th birthday of the child or young person. The dicta of Thorpe LJ in Re F, cited above, are of general application. Where a court has ruled that a young person is at risk of harm, and has granted an injunction to protect her from that risk, it must have the power, as part of the protective measures available in wardship and under the inherent jurisdiction generally, to extend that protection beyond the young person’s 18th birthday. The origins of wardship lie in the parens patriae role of the Crown. In the exercise of parental responsibility generally, decisions are often taken for the benefit of young people that extend into adulthood. In most cases, parents – and the court – stand back to allow young people to make decisions for themselves. In some cases, however, young people need continuing help and protection beyond their 18th birthdays. In such circumstances, parents continue to exercise responsibility, and this court under its inherent jurisdiction, must be prepared to do so if required.
This principle is reflected in the dicta of Munby J in Re SA quoted above. Although dealing with a different set of circumstances – the need to protect a young woman from the risk of an unsuitable arranged marriage – the learned judge was careful to stress that there is probably no theoretical limit to the jurisdiction and (citing Singer J in Re SK, supra) observed that the jurisdiction must evolve in accordance with social needs and social values. In my judgment, the jurisdiction extends to protect vulnerable young people whether or not they lack capacity. Since the decision in Re SA, society has increasingly recognised that there are many young people who for one reason or another are in need of protection beyond their 18th birthday. Cases of sexual exploitation are but one example. There are, of course, statutory remedies available in many cases, but the inherent jurisdiction is also available to provide protection where appropriate. As Munby J observed in Re SA at paragraph 2 in the passage already quoted,
“A young woman who remains just as vulnerable now she is an adult as she did when she was still a child should not suddenly be deprived with the protection which the court has hitherto felt it necessary to afford her and which I believe is still very much required in her best interests.”
I respectfully agree.
The European Convention of Human Rights, implemented by the Human Rights Act 1998, has only reinforced that obligation. The court is a public authority and, when exercising its jurisdiction in wardship and under the inherent jurisdiction, must have regard to Articles 2, 6, and 8 when making orders that are needed to protect young people falling within its jurisdiction.
When, as here, the court has jurisdiction at the start of wardship proceedings on the grounds that the child is habitually resident in England and Wales, that jurisdiction continues until the conclusion of the proceedings, notwithstanding the fact that the ward has become habitually resident elsewhere. That is sufficient to provide jurisdiction in this case for the making of the orders sought by the applicant. In addition, the court may have jurisdiction on the grounds that the ward is a British national. In either case, the question is, as Baroness Hale observed in Re A whether it is appropriate to exercise the jurisdiction in the particular circumstances of the case.
It follows that I reject Mr P’s submission that Australia is the only forum for determining an application for protective relief. He further submits that Australia is the appropriate forum on the grounds that all parties are living there. On this point, however, I accept the submission of Mr Lyon that to require either S or the mother to make an application in Australia exposes both of them to the very risks which this court’s orders have been designed and intended to avoid.
Having regard to the history, and the evidence I heard during the last hearing as quoted from my 2014 judgment, I am in no doubt that this mother, and indirectly S, remain at very great risk from the man who has twice been convicted of offences involving the incitement to murder the mother, the second conviction relating to an offence committed while he was in prison in Australia and the mother was on the other side of the world in the United Kingdom. The revelation in the course of the hearing in 2014 that the father had obtained photographs that indicated he may be aware of the location of the address of the mother and S has been confirmed by his skeleton argument for this hearing. Although to date the direct threat has been towards the mother, it is in my judgment plain that S remains at risk of emotional harm as a result of that threat. I completely reject the father’s reassertion of the argument, made repeatedly in proceedings in this court and in Australia, that he has been motivated solely by a wish to protect S.
In my judgment, it is imperative that this court makes the order within the wardship jurisdiction, or alternatively under its inherent jurisdiction to protect vulnerable adults, extending the protection provided hitherto beyond S’s 18th birthday. In the circumstances of this case, it is essential that, in order to ensure the protection is extended for S, the mother is also kept within the ambit of the injunction.
I therefore make an order as requested, extending beyond S’s 18th birthday and lasting until further order. I have made some slight amendments to the draft order submitted by Mr Lyon, in part to address a further complaint by the father who objected to the inclusion of a provision preventing him from going within 100 miles of any place where the applicant or S may be living or staying. Mr P objected that such an order would be varied for uncertainty because, unless it is known where S is residing, such an exclusion zone could not be fairly defined. I therefore make an order in the following terms:
“It is ordered that
(1) the respondent, whether by himself or instructing, inciting or encouraging any other person be restrained until further order from
(a) using or threatening violence or attempting the same against the applicant or S;
(b) intimidating, harassing or pestering the applicant or S;
(c) coming within a 50 miles radius of, entering or attempting to enter, any property at which he believes, knows or suspects the applicant or S to be present or living or of any educational establishment or place of work at which he believes, knows or suspects the applicant or S may attend or work;
(d) communicating or making contact with the applicant or S by letter, telephone, Skype, text message, email, any means of electronic communication, or through any social networking sights including Facebook, save through the offices of Messrs Thomson, Snell and Passmore, the applicant’s solicitors;
(2) any person on whom this order served, or who is aware of its terms, is restrained until further order from making disclosure to the respondent, or to any other person on his behalf, which would in any way identify the current whereabouts of the applicant or S, from identifying to the respondent the name or identity under which the applicant and S may be known or is currently living and/or registered;
(3) the applicant and/or her solicitors are authorised to disclose this order and any other information relating to these proceedings to:
(i) the police in the United Kingdom;
(ii) the Home Office, and any agency acting on its behalf, and any relevant government authority in Scotland;
(iii) the Department of Community Services in Australia and
(iv) the Australian Federal Police, New South Wales Police Force and any other relevant police authority and state correctional services, whether publically funded or privately managed.
(4) The Respondent to pay the costs of and incurred by this application, to be assessed if not agreed, such costs should be limited to those sums recoverable by the applicant under the terms of the public funding certificate, such costs include any costs reserved.