H (A Minor) v Northamptonshire County Council & Anor

H, who was born on 31 October 2008 and is 8 years of age was made the subject of care proceedings on the application of Northamptonshire County Council (‘the local authority’) on 25 February 2016. The final hearing was listed before me on 6 to 8 December 2016. This judgment should be read with judgment I gave at the conclusion of that hearing: [2016] EWFC 66 (Fam).

H’s mother is KW. She has not engaged with the local authority nor played any role in the care proceedings. His father is CF. The essential issue in dispute in the care proceedings was whether I should accede to the local authority’s application for a care order on a plan of long term foster care for H or whether I should accede to the father’s application for H to be rehabilitated to his care. The children’s guardian supported the local authority’s application and care plan.

I approved the making of a care order on the basis of H remaining in long term foster care and having regular direct contact with his father. In the judgment I foresaw a real possibility that in due course H could be rehabilitated to his father’s care. I expressed the hope that the father would undertake the therapy and courses advised by the social care professionals and abstain from or greatly reduce his consumption of alcohol, so that H could, in the medium term, live with him.

The principal issue in the care proceedings was whether the father could presently afford good enough parenting to H. I decided he could not.

During the currency of the care proceedings, a claim under the Human Rights Act 1998 (‘HRA claim’) was issued on H’s behalf seeking declarations and damages against the local authority. I heard that claim concurrently with the public law proceedings. The Legal Aid Agency (‘the LAA’) granted a separate public funding certificate to H’s solicitors to pursue the HRA claim.

In circumstances which I shall set out in some detail later in this judgment the HRA claim was settled. An issue arose as to whether the LAA would contend that the statutory charge would attach to any damages awarded to H in respect of the costs incurred under the public funding certificate issued in respect of the care proceedings. Ultimately the LAA decided the statutory charge would not apply to any HRA damages awarded to H. The process by which the LAA came to that decision has given rise to the local authority seeking an order for costs against the Lord Chancellor.

The local authority, supported by the claimant in the HRA proceedings, namely H, submitted that (a) the court has the power to make an order for costs against the Lord Chancellor and (b) the facts of the litigation history justified the court exercising its discretion to make a third party costs order against the Lord Chancellor.

It was submitted on behalf of the Lord Chancellor that (a) the court has no power to make an order for costs against the Lord Chancellor and (b) even is it did, the court should decline to make an order for costs.

The parties and the Lord Chancellor were agreed that in the event that the court decided to make an order for costs, it would be appropriate for the court to make a summary assessment of any costs payable rather than to order a detailed assessment of the same.

Thus I have to determine:

There was a long history of a very poor relationship between the mother and the father: it was characterised by frequent episodes of domestic abuse. Sadly the mother suffered from serious chronic mental health problems. Ultimately they separated. H remained in the care of his mother and the father began a relationship with a new partner, LH. They had a child, M.

The claimant asserted and the local authority accepted that it was well aware of the poor quality of the mother’s care of H and of the adverse effects of the same on him, but took no action to prevent or ameliorate the harm H was suffering in his mother’s care.

In July 2012 H moved to live with his father and MH. Unfortunately their relationship broke down in May 2013 and H lived in the sole care of his father. In July 2013 the father was arrested for a sexual offence in respect of a child under the age of 13. The father pleaded guilty to the offence and in May 2014 he was sentenced to a term of 16 months’ imprisonment. He was released from prison in January 2015.

After the father’s arrest and notwithstanding the local authority’s knowledge of the deficits in the mother’s parenting of H, it arranged for him to be placed in the sole care of the mother. Shortly after H was placed with his mother he was sexually abused by a half sibling when both were inadequately supervised by the mother.

Thereafter H moved to live with LH, her mother and his half brother, M. In 2014 the local authority formulated a plan for H to live permanently with LH and her mother either under a special guardianship order or a child arrangements order but then took no steps to implement the plan.

Worse still, despite receiving reports that H was displaying very challenging and difficult behaviour, the local authority provided no help, services or support to either H or to LH and her mother. In July 2015 the placement broke down and H was placed in foster care. Most regrettably the local authority failed to secure the mother’s or the father’s consent to H being accommodated in foster care. Moreover without any lawful authority the local authority restricted and/or failed to permit the father or M to have contact with H.

There was no justification for the local authority failing to issue care proceedings in respect of H until 25 February 2016.

I note that the father’s HRA claim against the local authority has been settled and a sum of damages agreed without the need for the father formally to issue a claim.

I am most grateful to Mr Tyler QC and Mr Mansfield, leading and junior counsel for the local authority, for their most helpful summary of communications between the claimant’s solicitors and the LAA. I am indebted to the claimant, through his leading and junior counsel, Mr Vine QC and Mr Allen, for agreeing to waive privilege in respect of counsels’ opinions sent on diverse occasions by the claimant’s solicitors to the LAA in support of the application for public funding of H’s HRA claim.

On the 12 April 2016 I made an order in the care proceedings which contained the following relevant recital and directions:

“AND UPON the Court inviting the Legal Aid Agency to use its best endeavours to expedite its decision on funding of applications by the parties under the Human Rights Act 1989

[…]

[4] The parties are to file and serve any applications in respect of claims under the Human Rights Act 1998 by 24 June 2016 to be supported by a skeleton argument addressing the basis of claim and quantum in respect of any damages sought.

[5] Any applications for the parties under the Human Rights Act 1989 [sic] are to be made separately but determined alongside the care proceedings.

[6] The local authority is to file and serve it final evidence and care plan and its skeleton argument in response to any applications made by the parties under the Human Rights Act 1989 [sic] no later than 4 pm on 8 July 2016. […]”

On 18 June 2016 the LAA refused the application by H for public funding to pursue a HRA claim. In response the claimant’s solicitors, Brethertons, emailed the LAA on 24 June 2016 requesting that it review its decision and included a short advice from their then junior counsel, Mr Leong, which read as follows:

“My view of the local authority’s failures which breached H’s human rights and would justify a claim for damages under s.3 Human Rights Act 1998 would be as follows:

a)

the local authority’s failure to implement its care plan following H being accommodated under s.20 Children Act 1989 in March 2014 failed to provide H with a proper opportunity to secure a settled and long-term placement. This is a breach of his Art 8 rights.

b)

the local authority’s failure to issue proceedings in a timely manner from March 2014 to February 2016 deprived H of the protection he would have received under the provisions of the Children Act 1989 (particularly Part IV), deprived H of access to court and the protections afforded to him by that process and also deprived H of the procedural protection of a children’s guardian. This is a clear breach of his Art 6 rights and Art 8 rights.

c)

The local authority’s failure to carry out a proper assessment of H’s needs following his mother abandoning him in March 2014 and its failure to draw up and implement an appropriate care plan to meet those needs arguably contributed to the numerous placement breakdowns that H has endured since then. This is a breach of his Art 8 rights.

I am of the view that the above breaches by the local authority would found a claim against it for damages and a court would have sympathy with such a claim.”

On 19 July 2016 Brethertons emailed the LAA to clarify the agency’s position in respect of the applicability of the statutory charge in the event that H was successful in securing an award of damages in the HRA claim. On 22 July the LAA replied as follows:

“Dear Sirs

Thank you for your response.

I can confirm that the Statutory Charge would arise in respect to the costs on both a certificate covering an application under the Human Rights Act and the current case certificate.

Kind regards

LAA”

Subsequently the LAA granted a public funding certificate for a HRA claim to be pursued. This was a separate certificate from the one issued on behalf of H in the care proceedings. At a directions hearing on 15 August I made an order which contained the following recital and directions:

“AND UPON the Children’s Guardian confirming that her lawyers have legal aid funding for a claim under the Human Rights Act 1998.

[…]

[4] The parties are to file and serve any applications in respect of claims under the Human Rights Act 1998 by 5^th September 2016 to be supported by a skeleton argument addressing the basis of claim and quantum in respect of any damages sought.

[5] Any applications for the parties under the Human Rights Act 1989 are to be made separately but determined alongside the care proceedings.”

On 22 September 2016 Brethertons issued a claim form, together with a detailed five page particulars of claim, in respect of H’s HRA claim.

In response to the claim the local authority admitted the pleaded beaches of H’s Art 8 rights, accepted he was entitled to declaratory relief and made a without prejudice offer to pay him £15000 in damages. In the claim form the damages sought were £25000.

In consequence of that offer, on 7 October Brethertons sent the following email to the LAA:

“Dear Sirs

[…]

We have received an offer to settle this matter from the Local Authority in the sum of £15,000 on a without prejudice basis.

To enable us to advise promptly and having sought advice from counsel it is clear we require assistance from the Agency in respect of the operation of the statutory charge.

We attach herewith an opinion prepared by Counsel and would be grateful if the Agency could please respond to the issues identified at paragraph 4.

To assist the Agency we attach herewith the documents referred to in the opinion together with the relevant court orders.

We would very respectfully request the Agency to attend to this issue as a matter of urgency. The case returns before the court on the 21 November 2016 and the court indicated to Counsel on the last occasion that it was expected that the Human Rights Act Claim on behalf of H would be resolved by then. Certainly we expect the court to require updating and clearly also we need to be able to respond to the Local Authority’s offer.

We are extremely grateful for the agency’s assistance.”

The advice referred to in this email was prepared by Mr Allen dated 3 October 2016. The complete advice was provided to the court but for the purposes of this judgment I need only set out the following pertinent passages:

“[3] On 22 September 2016, as directed by the Court, a claim was issued on behalf of H against Northamptonshire County Council (‘the Defendant’) pursuant to s.7(1)(a) of the Human Rights Act 1998 (not under s.7(1)(b), which permits claims within existing proceedings). The grounds for the claim are set out in the Particulars of Claim and accompanying Skeleton Argument (copies attached) and therefore are not repeated here. My instructing solicitor provides his legal services within the Human Rights proceedings (‘the HR claim’) under a separate civil legal aid certificate reference number: 300000155379. The HR claim is listed for consideration on 21 November 2016 and, if not resolved at that stage, for determination at the conclusion of the care proceedings in December 2016.

[4] The difficulty that now arises is:

whether, in the event of damages being awarded in the HR claim, the Legal Aid Agency (‘LAA’) will seek to recoup costs under the statutory charge; and,

if so, will the LAA seek to recoup only the costs of the HR claim or, in addition, the costs of the care proceedings?

[5] In either event, the likelihood is that any monetary compensation that might be ordered to provide H with just satisfaction in respect of the Defendant’s unlawful conduct will be considerably reduced, if not entirely extinguished. In my view, given that H is a victim of significant human rights violations, that would not be a just outcome.

[6] The LAA has a discretion to waive the application of the statutory charge where it is equitable to do so if (a) the proceedings have a wider public interest, and (b) it is cost-effective to fund particular claimants: Civil Legal Aid (Statutory Charge) Regulations 2013 (SI 2013/503).

[7] Arguably such condition precedents are made out in this case. Enforcement of the statutory charge undoubtedly would cause grave hardship to H insofar as it would deprive him of the benefits of a monetary award, which the court had decided was necessary to compensate him for State violation of his human rights. I also consider that it may be unreasonably difficult to enforce the statutory charge in relation to a monetary award, which ultimately would be controlled and managed by the Court until H attained majority. It is submitted that this is an appropriate case to realise real benefits to the public at large insofar as it must be in the common good for a victim to have access to a process of restitution when State authorities fail to maintain the highest standards of professional conduct and competence and for ‘justice to be seen to be done’.

[8] I am aware that in cases where a human rights claim is made within existing proceedings the general policy of the LAA is to seek to recover payment of all costs. However, in this case, there is a clear distinction between the care proceedings and the HR claim. The HR claim was made by freestanding application. My instructing solicitor has been careful to ensure that the services provided under the HR claim legal aid certificate are limited to issues pertaining only to the HR claim. Moreover, the case management and determination of the HR claim is provided for separately to that of the care proceedings and are not dependent upon the outcome of those proceedings. Therefore, in the event that the LAA seeks to recoup costs, it would not in my view be appropriate or proportionate to include the costs incurred under the public funding certificate in the care proceedings.

[ … ]

[11] For the reasons set out above, I would invite the LAA in this case to waive the application of the statutory charge in the event of damages being awarded.

[12] However, in the event that the LAA does seek to apply the statutory charge I would invite it to confirm that it would seek to recover only its costs under the HRA claim.

[13] The Legal Aid Statutory Charge Manual states that a decision as to whether the charge will or will not apply can only be made at the end of a case. However, my experience suggests that an early statement of intent by the LAA will allow my instructing solicitor to make informed decisions in determining the HR claim, which is more likely to result in a speedy and proportionate resolution.

[14] If the LAA seek to recover both sets of costs out of any damages that may be awarded in the HR claim I advise my instructing solicitor to obtain advice, to include advice from leading counsel now. I do not believe the issue could await determination post these proceedings and the court seized of the case now would be invited to grapple with these issues.”

The LAA responded to Brethertons in an email of 7 November:

“Thank you for your enquiry

I would advise you that subject to the extent of the connection between the Human Rights action and the initial Care proceedings any Damages recovered as a consequence of the Human Rights proceedings will be subject to the Statutory Charge and it is possible that the liability will extend to the costs arising from the Care proceeding. The consideration of the connection is made once the settlement is reached, and would depend on the facts of the case. I note that counsel refers to the Human Rights proceedings being freestanding however I am unable to make a final decision as regards the statutory charge position without the full facts being available to me. If the client obtained a finding in the care proceedings that led to the award of damages then the costs of the care proceedings would in principle form part of the charge.
I also note that Counsel refers to the LAA having discretion to wave the statutory charge I would advise you that there is no provision or discretion to exempt the Statutory Charge in these circumstances other than those set out in Regulation 9 of the Civil Legal Aid (Statutory Charge) Regulations 2013:

9.—(1) The Lord Chancellor may, where the Lord Chancellor considers it equitable to do so, waive all or part of the amount of the statutory charge, if the following conditions are satisfied:
(a) the Director was satisfied, in determining that a legally aided party qualified for legal representation, that the proceedings had a significant wider public interest; and
(b) the Director in making the determination took into account that there were other claimants or potential claimants who might benefit from the proceedings.

(2)

In this regulation, “significant wider public interest” has the same meaning as in the Civil Legal Aid (Merits Criteria) Regulations 2013.

Although no final charge decision can be made I hope that the above information is of assistance to you.”

On 15 November Brethertons sought clarification from the LAA on the issue and relevance of findings of fact to the applicability of the statutory charge:

“Dear Sirs,

We thank you for your e-mail.

In light of your advises please can you indicate therefore that were there to be no findings within the care proceedings which is anticipated and that if the only findings were made in the human rights act proceedings that the charge would arise only in respect of the human rights proceedings and not in respect of the costs of the care proceedings.

Hopefully this is sufficient however you have indicated that you may require the full facts and if this is the case please can you clarify what it is that you will require so we can provide this.

This matter is before the Court on 21 November and we would therefore be grateful to hear from you as soon as possible.”

The LAA replied on 18 November:

“**LAA 18/11/2016 08:12**

As the Human Rights element is linked to the care proceedings the charge would more than linkely [sic] arise to the whole amount of the claim rather than just the Human Rights element, however until we see your file of papers we cannot make a definitive charge decision.

Kind regards”

On 20 November I set the care proceedings and HRA claim down for final hearing on 6 to 9 December, inclusive.

At the conclusion of that final hearing I gave judgment in the care proceedings as set out in paragraph 1 above. I decided to postpone making a care order until the hearing to be listed on 17 and 18 January for two reasons:

Although the local authority had admitted liability on the HRA claim and would consent to the court making declarations as to the violations of H’s Art. 8 rights, the quantum of damages was then still in issue. I would have had no difficulty with hearing submissions on that issue and making a decision on quantum either on 8 December and/or 9 December. There was, however, no clarity about whether the LAA would decide that the statutory charge was applicable to any HRA damages awarded to H in respect of the costs incurred under his public funding certificate in respect of the care proceedings. In those circumstances Mr Allen mooted whether those representing H would seek an order for costs of the care proceedings against the local authority. (I interpolate that in the event such a course was not pursued.)

I decided, with the agreement of all parties, that I could not properly decide the quantum of damages and, more importantly any consequential orders, without knowing, if at all possible, the stance of the LAA on the issue of the applicability of the statutory charge. I, therefore, made the following order on 8 December:

“Upon hearing counsel, Mr D Allen, for the Claimant, and counsel, Mr B Mansfield, for the Defendant;

Upon the Claimant seeking Declarations that his Article 6 and 8 rights have been unlawfully interfered with and financial redress, the declaratory relief alone being insufficient as just satisfaction.

And Upon the Defendant having indicated on an open basis that it will pay damages of £18,000 to afford just satisfaction in addition to declaratory relief, as well as the reasonable costs of the Claimant in these proceedings up to and including the costs of the hearing to 8 December 2016 (to be assessed if not agreed).

And Upon the Court being informed that the Legal Aid Agency has indicated to the Claimant that it is likely to recoup against any damages or other financial recompense awarded to the Claimant in these proceedings by way of statutory charge, as well as public law Children Act 1989 proceedings under Case No: MK16C80047

And Upon the Court on 20 November 2016 having invited the Defendant to indemnify the Claimant in respect of his costs within the care proceedings under Case No: MK16C80047 and on 6 December 2016 being informed that the Deputy Director of the Defendant Children’s Services does not so agree;

And Upon the Court being informed that in the event of the application of the statutory charge the Claimant seeks, in addition to damages to afford just satisfaction in respect of the Defendant’s unlawful conduct, either financial recompense from the Defendant to discharge the Claimant’s costs in the proceedings under Case No: MK16C80047 or an order that the Defendant shall pay the Claimant’s costs in those proceedings;

And Upon the Court being informed that the Defendant has engaged Leading and Junior Counsel for the hearing provided for in paragraph 5 below, as well as the preparatory work in respect of that hearing, and the Court accepting that it would be assisted by the same level of representation on the part of the Claimant for the same hearing;

And Upon the Court indicating that the nature of this case and in particular the liability for the costs of the Claimant in care proceedings in the context of the application of the legal aid statutory charge for the purposes of a claim under the Human Rights Act raises very significant public interest issues

And Upon the Court inviting:

the Legal Aid Agency to confirm to the Court and the parties in writing by 4pm on 16 December 2016 whether the LAA will seek to enforce the statutory charge in these proceedings as well as the public law Children Act 1989 proceedings under Case No: MK16C80047 against any damages or other financial recompense awarded to the Claimant in these proceedings.

the Legal Aid Agency to intervene in these proceedings by no later than 4pm on 16 December 2016 (such intervention to be effected by providing written notice to the parties and the Court) and to attend the hearing provided for in paragraph 5 below in the event that they do seek to enforce the statutory charge under both legal aid certificates.

The Director of the Defendant Children’s Services to indemnify the Claimant in respect of his costs within the care proceedings under Case No: MK16C80047 in the event that the Legal Aid Agency does seek to enforce the statutory charge under both legal aid certificates.

the Director of the Defendant Children’s Services to respond confirming its position on the question of an indemnity by 4pm on 23 December 2016 in writing to the Court and the parties.

IT IS ORDERED THAT:

1)

The Claimant shall by 10am on 12 December 2016 serve upon the Legal Aid Agency:

a.

a copy of this order, and

b.

the following documents:

i.

the Claim Form and Particulars of Claim;

ii.

the Claimant’s Skeleton Argument;

iii.

the Defendant’s Skeleton Argument in response;

iv.

the orders dated 12 April 2016, 13 June 2016, 28 June 2016, 15 August 2016 and 20 November 2016;

v.

the Local Authority Case Summary’s for the hearings on 6 December 2016.

2)

The Claimant shall by 10am on 9 January 2017 file and serve a skeleton argument, together with any authorities relied upon in support of his case.

3)

The Legal Aid Agency shall by 10am on 13 January 2017 file and serve a skeleton argument, together with any authorities relied upon in support of its case.

4)

The Defendant shall by 4pm on 13 January 2017 file and serve a skeleton argument in response, together with any authorities relied upon.

5)

The matter is listed for further consideration on 17 January 2017 at 10am before Keehan J, with a time estimate of 2 days, when the following issues shall be determined:

a.

Declaratory relief;

b.

Financial redress;

c.

Application and/or extent of the statutory charge;

d.

Liability for costs.

6)

Costs reserved. ”

At the hearing on 8 December the local authority told me that it had increased its offer from £15000 to an open offer of £18000.

On 16 December Brethertons sent an email to the LAA giving it notice of the order of 8 December. The email read as follows:

“As discussed this morning Mr Justice Keehan sitting in the High Court of Justice Family Division has in summary invited the LAA to confirm whether it will seek to enforce the statutory charge in these proceedings as well as the public law Children Act 1989 proceedings […], and also to intervene in respect of proceedings commenced under the above certificate number in relation to the Human Rights Act. I would respectfully refer you to the order of 8 December 2016 for the detail.

The Court directed in the first instance that the Agency provide a response to these matters by 4pm on 16 December it being expected that the Agency would have notice by 10am on 12 December. Regrettably due to an oversight on my part that notice is being served by 10am today. As such an application has been submitted to the Court requesting an extension of time for the Agency’s response to 4pm on 22 December 2016. I will advise you as to the outcome of that application as soon as I am able.

I confirm therefore, pursuant to the Order of the Court I attach:

copy of the order of 8 December 2016,

the Claim Form and Particulars of Claim,

the Claimant’s Skeleton Argument,

the Defendant’s Skeleton Argument in response,

the orders dated 12 April 2016, 13 June 2016, 28 June 2016, 15 August 2016 and 20 November 2016.

You kindly indicated in our telephone call that you would take responsibility for ensuring that this reached the correct department and that the Agency will accept service by e-mail. You have asked that I not send the documents in hard copy to the Agency in Jarrow.

As agreed please may you acknowledge safe receipt of this email and that the documents have been forwarded to the appropriate team.”

Mr Rimer of the LAA replied to Brethertons on 22 December by way of two emails. The first, sent at 11.04, reads thus

“[…] Thank you for sending the order of 8 December and additional documents to the Legal Aid Agency. My team will be dealing with this. We apologise for our slight delay in replying to let you know that we are now the contact for this case.

I note that following your delay in getting the 8 December order to us, you have made an application for us to notify the court by the end of today on whether we wish to intervene. I am not going to be able to take instructions on the detail of this case today, but think that given the shortness of time we shall indicate what we do wish to intervene, and will do our best to follow the time table in the order so that we can be at the hearing on 17 January 2017. ”

Brethertons responded at 11.25 in the following terms:

“Dear Mr Rimer,

Thank you for your email.

I am grateful for your response and assistance.

The application for amendment to the Order is still with His Lordship but given your indication below I will confirm to the Court and Local Authority that the LAA intends to intervene.

The other matter which was also to be responded to today in the draft Order is whether the LAA will seek to enforce the statutory charge in these proceedings as well as the Care proceedings. Please can you clarify the Agency’s position in respect of that.”

The second email sent by the LAA to Brethertons, just minutes later, is crucial to the issues in this case. Mr Rimer said:

“Please could you treat this e-mail as the Legal Aid Agency’s response in accordance with paragraph A of the court’s invitation in the Order of 8 December 2016. The Legal Aid Agency confirms that it will seek to enforce the statutory charge in these proceedings (FD16F00087) as well as the public law Children Act 1989 proceedings under case no. MK16C80047 against any damages or other financial recompense awarded to H in FD16F00087.

This now triggers the timetable that is in the order of 8 December […]. ”

Then on 12 January 2017 Mr Rimer sent the following email to junior counsel for the local authority:

“Dear Mr Mansfield,

I am going to be notifying the court later that the LAA has reviewed its position in this matter and no longer asserts that the costs of the care proceeding will attach as a charge to damages recovered in the HRA proceedings. I had my instructions confirmed at lunchtime today.

Yours sincerely, etc.”

This was followed shortly afterwards by the email set out below to the court:

“Dear Sirs

This case is listed for a two day hearing on 17 and 18 January in the Royal Courts of Justice before Mr Justice Keehan.  

By an Order made on 8 December 2016 by Mr Justice Keehan (sitting in the Birmingham District Registry) invited the Legal Aid Agency to intervene in this case if it intended to enforce the statutory charge in respect of the costs of H has incurred under his legal aid certificate in care proceedings in case MK16C80047.   On 22 December 2016, though Matthew Montanaro, we did indicate that the LAA wished to intervene on that basis.   Our skeleton argument is due at 10am tomorrow.  This email is to notify the court and the other parties that the Legal Aid Agency does not intend to be serving or filing a skeleton argument tomorrow.  

Our decision to intervene was based on limited information and was primarily done in order to protect my client’s position while we looked into this matter in greater detail.   The Legal Aid Agency has now reviewed its position in this matter and no longer asserts that the costs of the care proceedings will attach as a charge to damages recovered in the HRA proceedings.  We are satisfied that the HRA damages claim relates to a claim for damages as a result of the delay in bringing the care proceedings, rather than relating to issues within the care proceedings.  The HRA damages claim is a separate set of proceedings being funding under a separate legal aid certificate.  Only the costs spent under the HRA certificate could attach as a charge to damages recovered in those proceedings.  

Whilst the caseworker who originally thought that the statutory charge might attract costs incurred under the care proceedings certificate is aware of the change of position as set out in this email, solicitors for H should keep a copy of this email and attach it to their claim for costs so that the team which processes the claim is also aware.

In the circumstances, the Legal Aid Agency will not be submitting a skeleton argument tomorrow and will not be attending the hearing on 17 and 18 January, unless the court directs otherwise.”

This volte face caused the local authority to adopt the position that

Mr Tyler QC submitted the court had the power to make an order for costs against a third party, including the Lord Chancellor, by virtue of s.51 Senior Courts Act 1987 and CPR r.46.2 which provide:

“51.— Costs in civil division of Court of Appeal, High Court and county courts.

(1)

Subject to the provisions of this or any other enactment and to rules of court, the costs of and incidental to all proceedings in —

(a)

the civil division of the Court of Appeal;

(b)

the High Court;

(ba) the family court; and

(c)

the county court, 

shall be in the discretion of the court.

(2)

Without prejudice to any general power to make rules of court, such rules may make provision for regulating matters relating to the costs of those proceedings including, in particular, prescribing scales of costs to be paid to legal or other representatives or for securing that the amount awarded to a party in respect of the costs to be paid by him to such representatives is not limited to what would have been payable by him to them if he had not been awarded costs. 

(3)

The court shall have full power to determine by whom and to what extent the costs are to be paid.”

and

“46.2.— Costs orders in favour of or against non-parties

(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—

(i)

make an order against the Lord Chancellor in proceedings in which the Lord Chancellor has provided legal aid to a party to the proceedings;

(ii)

make a wasted costs order (as defined in rule 46.8); and

(b)

in proceedings to which rule 46.1 applies (pre-commencement disclosure and orders for disclosure against a person who is not a party).”

The circumstances in which the statutory charge applies are set out in s.25 of the Legal Aid, Sentencing and Punishment of Offenders Act (‘LAPSO’) namely:

“25.

Charges on property in connection with civil legal services

(1)

Where civil legal services are made available to an individual under this Part, the amounts described in subsection (2) are to constitute a first charge on—

(a)

any property recovered or preserved by the individual in proceedings, or in any compromise or settlement of a dispute, in connection with which the services were provided (whether the property is recovered or preserved for the individual or another person), and

(b)

any costs payable to the individual by another person in connection with such proceedings or such a dispute.

(2)

Those amounts are—

(a)

amounts expended by the Lord Chancellor in securing the provision of the services (except to the extent that they are recovered by other means), and

(b)

other amounts payable by the individual in connection with the services under section 23 or 24.”

The issue of the Director of the LAA waiving the statutory charge in this case was raised by junior counsel for the claimant in his advice of 3 October 2016. The Director may, however, only consider waiving the statutory charge if the conditions of regulation 9 of the Civil Legal Aid (Statutory Charge) Regulations 2013 are satisfied. This regulation provides that:

“9.—(1) The Lord Chancellor may, where the Lord Chancellor considers it equitable to do so, waive all or part of the amount of the statutory charge, if the following conditions are satisfied:
(a) the Director was satisfied, in determining that a legally aided party qualified for legal representation, that the proceedings had a significant wider public interest; and
(b) the Director in making the determination took into account that there were other claimants or potential claimants who might benefit from the proceedings.

(2)

In this regulation, “significant wider public interest” has the same meaning as in the Civil Legal Aid (Merits Criteria) Regulations 2013.”

It is plain, and no party sought to persuade me to the contrary, that

Ms Stout, counsel for the Lord Chancellor placed considerable reliance on s.26 of LASPO and on the provisions of The Civil Legal Aid (costs) Regulations 2013 (CLA(C)R). The former section makes provision for the costs protection of a legally aided party – namely:

“26 Costs in civil proceedings

(1)

Costs ordered against an individual in relevant civil proceedings must not exceed the amount (if any) which it is reasonable for the individual to pay having regard to all the circumstances, including—

(a)

the financial resources of all of the parties to the proceedings, and

(b)

their conduct in connection with the dispute to which the proceedings relate.

(2)

In subsection (1) “relevant civil proceedings”, in relation to an individual, means—

(a)

proceedings for the purposes of which civil legal services are made available to the individual under this Part, or

(b)

if such services are made available to the individual under this Part for the purposes of only part of proceedings, that part of the proceedings.

(3)

Regulations may make provision for exceptions from subsection (1).

(4)

In assessing for the purposes of subsection (1) the financial resources of an individual to whom civil legal services are made available, the following must not be taken into account, except so far as prescribed—

(a)

the individual’s clothes and household furniture, and

(b)

the implements of the individual’s trade.

(5)

Subject to subsections (1) to (4), regulations may make provision about costs in relation to proceedings for the purposes of which civil legal services are made available under this Part.

(6)

Regulations under subsection (5) may, in particular, make provision—

(a)

specifying the principles to be applied in determining the amount of any costs which may be awarded against a party to whom civil legal services are made available under this Part,

(b)

limiting the circumstances in which, or the extent to which, an order for costs may be enforced against such a party,

(c)

as to the cases in which, and the extent to which, such a party may be required to give security for costs and the manner in which it is to be given,

(d)

requiring the payment by the Lord Chancellor of the whole or part of any costs incurred by a party to whom civil legal services are not made available under this Part,

(e)

specifying the principles to be applied in determining the amount of costs which may be awarded to a party to whom civil legal services are made available under this Part,

(f)

as to the court, tribunal or other person by whom the amount of any costs is to be determined, and

(g)

as to the extent to which any determination of that amount is to be final.

(7)

Regulations may provide that an individual is to be treated, for the purposes of subsection (1) or regulations under subsection (3) or (5), as having or not having financial resources of a prescribed description (but such regulations have effect subject to subsection (4)).

(8)

Regulations under subsection (7) may, in particular, provide that the individual is to be treated as having prescribed financial resources of a person of a prescribed description.

(9)

Regulations under this section may include provision requiring information and documents to be provided.”

The relevant parts of the CLA(C)R 2103 provide as follows:

“2.

Interpretation

(1)

In these Regulations—

“the Act” means the Legal Aid, Sentencing and Punishment of Offenders Act 2012;

“certificate” means a certificate issued under regulations made under section 12 of the Act(3);

“costs order” means an order that a party pay all or part of the costs of proceedings;

“cost protection” means the limit on costs awarded against a legally aided party in relevant civil proceedings, set out in section 26(1) and (2) of the Act;

“court” includes any tribunal having the power to award costs in favour of, or against, a party;

[ … ]

“full costs” means, where a section 26(1) costs order is made against a legally aided party, the amount of costs which that party would, but for section 26(1) of the Act, have been ordered to pay;

“legally aided party” means an individual or legal person(7) to whom, in relation to relevant proceedings, civil legal services have been made available under Part 1 of the Act;

“legally aided party’s costs order” and “legally aided party’s costs agreement” mean, respectively, an order and an agreement that another party to relevant proceedings pay all or part of the costs of a legally aided party;

“litigation friend” has the same meaning as in CPR Part 21;

“non-legally aided party” means a party to proceedings to whom no civil legal services have been made available in a form for which a certificate would be issued under regulations made under section 12 of the Act, or a party to whom such services have been made available under a determination which has been revoked;

[ … ]

“provider” means a person who provides civil legal services under Part 1 of the Act;

“receiving party” means a non-legally aided party in favour of whom a costs order is made;

“relevant proceedings” means relevant civil proceedings (or contemplated proceedings) before a court;

[ … ]

“section 26(1) costs order” means a costs order against a legally aided party where cost protection applies;

[ … ]

3.

Effect of these Regulations

Where one or more parties are receiving, or have received, civil legal services in relation to proceedings, nothing in these Regulations is to be construed as—

(a)

requiring a court to make a costs order where it would not otherwise have made a costs order; or

(b)

affecting the court’s power to make a wasted costs order against a legal representative.

[ … ]

5.

Costs to which cost protection applies

Except as provided by this Part, cost protection only applies to costs incurred by the receiving party in relation to proceedings which are, as regards the legally aided party, relevant proceedings.

[ … ]

8.

Periods during which cost protection applies

(1)

Subject to paragraphs (2) and (3), cost protection applies in respect of costs incurred by the receiving party during the period in which civil legal services are being provided, whether before or after the commencement of proceedings.

(2)

Cost protection does not apply to costs incurred by the receiving party—

(a)

before the date of issue of a certificate, except in the circumstances described by paragraph (3) and regulation 7;

(b)

after the date on which a determination that the legally aided party qualified for civil legal services has been withdrawn;

(c)

before, at the time of, or after the date of revocation of a determination.

(3)

Where the Director makes a determination about emergency representation (other than a determination in relation to family proceedings to which cost protection does not apply) cost protection applies to costs incurred before the making of that determination, if—

(a)

the application for emergency representation could not be made because the office to which the application would ordinarily be made was closed; and

(b)

the provider made the application at the first available opportunity.

[ … ]

9.

Effect of this Part

(1)

This Part applies where cost protection applies.

(2)

The court may not, except in accordance with this Part, make an order requiring the Lord Chancellor to pay the whole or part of any costs incurred by a non-legally aided party because the proceedings are relevant proceedings as regards another party.

[ … ]

10.

Costs order against the Lord Chancellor

(1)

This regulation applies where relevant proceedings are finally decided in favour of a non-legally aided party.

(2)

Subject to paragraphs (3) to (8), the court may make an order for the payment by the Lord Chancellor to the non-legally aided party of the whole or any part of the costs incurred by that party in the proceedings (other than the costs that the legally aided party is required to pay under a section 26(1) costs order).

(3)

An order under paragraph (2) may only be made if the following conditions are satisfied—

(a)

a section 26(1) costs order is made against the legally aided party in the proceedings, and the amount (if any) which the legally aided party is required to pay under that costs order is less than the amount of the full costs;

(b)

the non-legally aided party makes a request—

(i)

under regulation 16(2), within three months of the date on which the section 26(1) costs order is made; or

(ii)

after the expiry of the time limit under regulation 16(2), where there is a good reason for the delay in the request being made;

(c)

as regards costs incurred in a court of first instance, the following conditions are met—

(i)

the proceedings were instituted by the legally aided party;

(ii)

the non-legally aided party is an individual; and

(iii)

the court is satisfied that the non-legally aided party will suffer financial hardship unless the order is made; and

(d)

in any case, the court is satisfied that it is just and equitable in the circumstances that provision for the costs should be made out of public funds.

(4)

Where the legally aided party receives civil legal services in connection with only part of the proceedings, the reference in paragraph (2) to the costs incurred by the non-legally aided party in the proceedings is to be construed as a reference to so much of those costs as is attributable to the part of the proceedings for which civil legal services are provided.

(5)

Where a court decides any proceedings in favour of a non-legally aided party and an appeal lies (with or without permission) against that decision, any order made under this regulation must not take effect—

(a)

where permission to appeal is required, unless the time limit for an application for permission to appeal expires without such an application being made;

(b)

where an application for permission is made within the time limit, unless the application is refused; or

(c)

where permission to appeal is granted or is not required, unless the time limit for appeal expires without an appeal being brought.

(6)

Subject to paragraph (7), in determining whether the conditions in paragraph (3)(c)(iii) and (d) are satisfied, the court must have regard to the resources of the non-legally aided party and of that party’s partner.

(7)

The court must not have regard to the resources of the partner of the non-legally aided party if the partner has a contrary interest in the proceedings.

(8)

Where the non-legally aided party is acting in a representative, fiduciary or official capacity and is entitled to be indemnified in respect of costs from any property, estate or fund, the court must, for the purposes of determining whether the conditions in paragraph (3)(c)(iii) and (d) are satisfied, have regard to the value of the property, estate or fund and the resources of any person who has a beneficial interest in that property, estate or fund.

[ … ]

15.

Determination of costs

(1)

Where the court is considering whether to make a section 26(1) costs order, it must consider whether—

(a)

but for cost protection, it would have made a costs order against the legally aided party; and

(b)

if so, whether, on making the costs order, it would have specified the amount to be paid under that order.

(2)

If the court considers that it would have made a costs order against the legally aided party, but that it would not have specified the amount to be paid under it, the court must, when making the section 26(1) costs order—

(a)

specify the amount (if any) that the legally aided party is to pay under that order if—

(i)

it considers that it has sufficient information before it to decide what amount is, in that case, a reasonable amount for the legally aided party to pay, in accordance with section 26(1) of the Act; and

(ii)

it is satisfied that, if it were to determine the full costs at that time, they would exceed the amount referred to in (i) above; or

(b)

not otherwise specify the amount that the legally aided party is to pay under that order.

(3)

If the court considers that it would have made a costs order against the legally aided party, and that it would have specified the amount to be paid under it, the court must, when making the section 26(1) costs order—

(a)

specify the amount (if any) that the legally aided party is to pay under that order if it considers that it has sufficient information before it to decide what amount is, in that case, a reasonable amount for the legally aided party to pay, in accordance with section 26(1) of the Act; or

(b)

not otherwise specify the amount the legally aided party is to pay under that order.

(4)

Any order made under paragraph (3) must state the amount of the full costs.

(5)

Regulation 16 applies to the determination of—

(a)

the amount (if any) to be paid by the legally aided party where paragraph (2)(b) or paragraph (3)(b) applies; and

(b)

any application for a costs order against the Lord Chancellor.”

Mr Tyler submits that the provisions of s.51 SCA and CPR r.46.2 clearly provide the court with the power to make a costs order against a third party. In relation to the circumstances in which it would be appropriate to make a costs order against a third party I was first referred to the judgment of the Court of Appeal in Globe Equities Ltd v. Globe Legal Services Ltd [1999] EWCA Civ 3023 where Morritt LJ said:

“[21] The principal argument was directed to the question whether the circumstances in these applications could properly be regarded as “exceptional”. […] But these statements left open the question by what standard the circumstances are to be judged in ascertaining whether they are exceptional. That question was answered by Phillips LJ in Chapman v Chapman [1998] 2 WLR 12 at p. 20 where he said 

“The test is whether they [sc. the features relied on] are extraordinary in the context of the entire range of litigation that comes to the courts.”

I would also comment that there appears to me to be a danger of treating the requirement that the circumstances are “exceptional” as being part of the statute to be applied. It is not. The epithet originates in the first proposition enunciated by Balcombe LJ in Symphony Group plc v Hodgson , but it is based on what Lord Goff said in Aiden Shipping Co. Ltd v Interbulk Ltd [1986] 1 AC 965 , 980 

“In the vast majority of cases it would no doubt be unjust to make an award of costs against a person who is not a party to the relevant proceedings. But, as the facts of this case show, that is not always so.”

In none of the cases to which I have referred have “exceptional circumstances” been elevated into a precondition to the exercise of the power; nor should they be. 

Ultimately the test is whether in all the circumstances it is just to exercise the power conferred by subsections (1) and (3) of s.51 Supreme Court Act 1981 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 circumstances 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.”

In Re OB (Private Law Proceedings: Costs) [2016] 1 FLR 92 Cobb J commented on a further feature of the decision in Globe when he said:

“[41] Morritt LJ (again with the consensus of the court) went on to hold (and I include this for further clarification) that it is not necessary for a determination of the issue of exceptionality for there to be a finding that the conduct of the non-party was ‘improper’ (para [27]). Specifically, he said:

‘That element ... is not a pre-requisite to the exercise of the jurisdiction conferred by s 51(1) and (3) Supreme Court Act 1981.’ (para [27])”

Finally in relation to potential liability of the LAA’s predecessor organisation – the Legal Aid Board – Thomas J, as he then was, in Kelly v. South Manchester Health Authority [1998] 1 WLR 244 at 257D, observed:

“In my judgment, the courts do have power in an appropriate and exceptional case to make an order in respect of costs against the board under section 51(1); the role of the board in litigation in which it is assisting one of the parties is a crucial one. The board’s efficient performance of its statutory duties is crucial to the proper and expeditious conduct of such litigation and the courts have an essential interest in seeing that those functions are performed in such a way that litigation is effectively progressed. ”

I respectfully agree with what was said by Morritt LJ, Cobb J and Thomas J in the above three cases.

Mr Tyler robustly refuted the submission of the LAA that the effect of reg.9(2) of the CLA(C)R 2013 is to prevent the court from making an order for costs against the Lord Chancellor. He submits that reg. 9(2) cannot and does not provide the Lord Chancellor with, as he termed it, a ‘blanket immunity’ in respect of adverse costs orders.

He submitted that s.26 LASPO and the CLA(C)R 2013, and most particularly reg.9, only applies where a non legally aided party is awarded costs against a legally aided party and the court has made a cost protection order in favour of the latter. This situation does not arise on the facts of this case and no such orders have been or will be made.

The local authority is forcibly critical of the second email sent on behalf of the LAA by Mr Rimer on 22 December. Mr Tyler submitted that the position of the LAA as set out in that email, namely that the statutory charge would apply to any damages awarded to H in respect of costs incurred under his public funding certificate in respect of the care proceedings, was clear and unequivocal. In his and Mr Mansfield’s skeleton argument it is asserted:

“48.

The LAA has inappropriately – almost certainly unlawfully – sought to recoup the cost of the provision of the ‘non-means, non-merits’ legal aid available for the claimant from the award of damages to which he is entitled due to the breaches of his human rights.

49.

Only at the eleventh hour – and when faced with the prospect of a High Court trial on the issue – has it adopted an approach which is correct in law.

50.

In so doing, it has caused the unnecessary attenuation of both the HRA and the care proceedings.”

Mr Tyler submitted that it is solely because of the decision conveyed by the LAA in that email that led to the costs incurred by the local authority after the hearing on 8 December. In those exceptional circumstances, he submitted that it was fair, just and equitable that the Lord Chancellor should pay the additional costs incurred.

Mr Vine QC and Mr Allen supported the stance taken by and the submissions of the local authority on the issue of costs.

They are primarily, and rightly, concerned with ensuring that H receives the totality of the HRA claim damages awarded to him. They sought to ensure that no part of those damages is reduced or eliminated by the application of the statutory charge nor by the adverse consequences of any costs orders made or, as the case may be, any costs orders not made by the court.

Ms Stout’s principal submission was that the court had no power, on the facts of this case, to make an order for costs. She relied upon the provision of the CLA(C)R 2013 and in particular on Part 3 and regulations 9(1), 9(2) and 10. In a case where one party is legally aided (i.e. the claimant) and one party is not legally aided (i.e. the local authority) she contended that the effect of regulation 9(2) was that an order for costs could only be made against the Lord Chancellor if all the conditions set out in regulation 10 are satisfied.

It is common ground between the parties that the conditions of this regulation are not satisfied in this case.

I regret I do not accept the submission that the court does not have the power to make a costs order against the Lord Chancellor in this case. I so decide for the following reasons.

The provisions of s.26 LASPO only apply where costs have been awarded against a legally aided party. In these circumstances the order for costs “must not exceed the amount (if any) which it is reasonable for the individual to pay having regard to all the circumstances …”: s.26(1) LASPO. A s.26(1) costs order “means a costs order against a legally aided party where cost protection applies”: reg.2(1) CLA(C)R 2013. The phrase ‘cost protection’ means “the limit on costs awarded against a legally aided party in relevant civil proceedings, set out in section 26(1) and (2) of the Act: reg.2(1) CLA(C)R 2013. All of these provisions are based on a costs order having been made against a legally aided party. In this case, of course, no order for costs has been or will be made against the claimant.

The only possible basis on which the Lord Chancellor’s submissions on this issue could succeed is if I interpret s.26 LASPO and the CLA(C)R 2013 to mean that it applies if there is the ‘potential’ for a costs order being made against a legally aided party. The clear wording of the section and the regulations simply do not permit such an interpretation.

Regulation 9 of CLA(C)R 2013 is headed ‘Effect of this Part’. Regulation 9(1) provides that ‘This Part applies where cost protection applies’. If I insert the clause set out in Reg 2(1) for the definition of ‘cost protection’, reg.9(1) would read ‘This Part applies where the limit on costs awarded against a legally aided party in relevant civil proceedings set out in section 26(1) and (2) of [LASPO] applies’. Cost protection does not apply in this case and thus the provisions of Part 3 of the CLA(C)R 2013 do not apply in this case, most especially regulation 9(2).

It is plain that regulations 9 and 10 apply in respect of the Lord Chancellor as the funder of legal aid to a party to civil proceedings. Reg.10 only applies where ‘proceedings are finally decided in favour of a non-legally aided party’. It is designed to provide recompense to that party, in specified and limited circumstances, where there is a shortfall between the costs incurred by that party and the limited costs which the legally aided party is ordered to pay, in consequence of which the non legally aided party will suffer financial hardship. Once again those circumstances do not arise in this case.

I am completely satisfied that

The Lord Chancellor’s secondary submission is that if the court has the power to make an order for costs against the Lord Chancellor, the court should not exercise its discretion to do so on the basis that there is no causal connection between the LAA’s change of position, between that set out in the second email of 22 December and the email of January 2017, and the additional legal costs incurred by the local authority. There is, it is submitted, no fault on the part of the LAA.

Ms Stout submitted that the second email of 22 December must be read with and in the context of the first email sent to Brethertons on 22 December. I agree.

The first email reads as follows:

“[…] Thank you for sending the order of 8 December and additional documents to the Legal Aid Agency. My team will be dealing with this. We apologise for our slight delay in replying to let you know that we are now the contact for this case.

I note that following your delay in getting the 8 December order to us, you have made an application for us to notify the court by the end of today on whether we wish to intervene. I am not going to be able to take instructions on the detail of this case today, but think that given the shortness of time we shall indicate what we do wish to intervene, and will do our best to follow the time table in the order so that we can be at the hearing on 17 January 2017. ”

Given that the Lord Chancellor had been given notice of the court’s order of 8 December on 16 December (i.e. 6 days before this first email) it is not the most helpful reply but, for the reasons given, it is certainly a reasonable and understandable response. The LAA will intervene in the proceedings and will do its best to comply with the court’s timetable and to appear at the hearing fixed for 17 and 18 January 2017.

The second email reads as follows:

“Please could you treat this e-mail as the Legal Aid Agency’s response in accordance with paragraph A of the court’s invitation in the Order of 8 December 2016. The Legal Aid Agency confirms that it will seek to enforce the statutory charge in these proceedings (FD16F00087) as well as the public law Children Act 1989 proceedings under case no. MK16C80047 against any damages or other financial recompense awarded to H in FD16F00087.

This now triggers the timetable that is in the order of 8 December […]. ”

Ms Stout submitted that both of these emails were holding responses to preserve the position of the Lord Chancellor pending full instructions being taken on the issue of whether the LAA would or would not decide that the statutory charge would apply to any HRA claim damages recovered by H in respect of the costs incurred under the public funding certificate for the care proceedings. I have no hesitation in agreeing that the first email of 22 December was a holding response. Whatever the intentions of the author of the second email, however, I cannot conceive how that email could be read other than giving a clear, decisive and unequivocal response to the invitation in the court’s order of 8 December. The opening sentence of the email is perfectly plain “Please could you treat this email as the Legal Aid Agency’s response in accordance with paragraph A of the court’s invitation in the Order of 8 December 2016.” There is no reference to the first email, no mention that this email is subject to the terms of the first email. There is no suggestion or indication that the email has been composed or sent under pressure of time or without due consideration.

The second sentence puts the matter even more starkly and beyond peradventure, “The Legal Aid Agency confirms it will seek to enforce the statutory charge in these proceedings … as well as the public law Children Act 1989 proceedings … against any damages or other financial recompense awarded to H in [the HRA claim].”

In the second email there is no suggestion that the LAA had insufficient information in order to make the s.25 LASPO decision as to the applicability of the statutory charge. There is, in the emails of 22 December, no request for any further information about the details of a connection or a lack of connection between the HRA claim and the public law care proceedings.

It is implicit in the text of the second email of 22 December that the LAA has made a determination that the HRA claim is “connected with” the public law care proceedings within the meaning of s.25 LASPO.

The justification offered by the Lord Chancellor for the decision set out in the email of 12 January is that the draft declarations of breaches of H’s Art 8 rights and the skeleton argument provided by the claimant some days before 12 January provided the LAA with information and details hitherto unavailable to the LAA which then enabled it to reach the decision set out in the email of 12 January. I repeatedly pressed counsel to identify what was set out in the declarations and/or the claimant’s skeleton argument that was previously unknown to the LAA. Indeed I adjourned for a period of time to enable Ms Stout to take specific instructions on this issue.

The repeated response to my enquiry of what was new information to the LAA was the receipt of the claimant’s declarations of breach sought against the local authority. There was no identification of anything that was new in the recent skeleton argument submitted by the claimant.

Mr Tyler very carefully and helpfully took me through the various documents and information which had been provided by Brethertons to the LAA from the time an application was first made on behalf of H for public funding of a HRA claim. It was perfectly clear at the conclusion of this exercise that the LAA had had all the information it needed to make the decision about whether the statutory charge was applicable to any award of damages well before the hearing on 8 December 2016. Furthermore, it was plain that there was nothing new in the documents provided to the LAA by the claimant’s solicitors after 8 December which materially added to the information already held by and available to the LAA.

I am satisfied, for the reasons I have given, that the court has the power to make a third party costs order against the Lord Chancellor. The remaining issue is whether I should exercise my discretion to make such an order.

The parties are agreed, including the Lord Chancellor, that if I decide to make a cost order or orders, I should make a summary assessment of the same rather than order the costs should be the subject of a detailed assessment. In those circumstances, in my judgment, I do not need to decide whether the costs should be assessed on the standard or an indemnity basis.

It was submitted by the Lord Chancellor that HRA damages should be assessed without regard to the fact that the claimant is legally aided. I agree and accept that the assessment of the quantum of damages in a HRA claim should be made without regard to the fact that the claimant is legally aided. Where I part company with the Lord Chancellor is in respect of the submission that the impact of the statutory charge on the extent to which the claimant will receive any part of the damages awarded is irrelevant to a court assessing damages and then considering whether to make consequential orders for costs. I emphatically disagree.

Ms Stout submitted that any dispute between the claimant and the LAA on the applicability of the statutory charge can be resolved in accordance with the procedures set out in paragraph 12, on page 101, of The Statutory Charge Manual (April 2014 edition). The provisions of paragraph 12 are:

“At the end of a case the regional office will decide whether in its view the statutory charge applies and how it is to be quantified. A decision about the charge is not the exercise of discretion. It is a legal decision to which (in theory) there is only one right or wrong answer. Where providers or clients disagree with regional office’s view about the charge they should:

a)

First, take the matter up with the regional office. If the certificate is still in force querying the charge will usually be within the scope of the certificate. If there is no certificate the provider will either have to undertake the work privately, free of charge, or as legal help if the client qualifies;

b)

Where disagreement persists about the charge and the case raises novel or complex questions (so that the decision is borderline or out of the ordinary), the regional office may refer it to the Central Legal Team to reach its own decision. Until this further has been taken, it would not be reasonable for providers to commence proceedings about the charge and the Lord Chancellor would raise these procedures on the question of costs;

c)

Where the matter cannot be resolved without proceedings, the legally aided individual may take proceedings under Part 8 of the Civil Procedure Rules (the alternative procedure for bringing a claim) against the Lord Chancellor seeking a declaration as to whether the statutory charge arises, and if so, its extent.”

Further Ms Stout submitted that issues in respect of the statutory charge should be resolved after the court proceedings had concluded. It was not she said the practice of the LAA to give a decision on the applicability of the statutory charge before the conclusion of the legal proceedings. When I asked whether there was a policy reason for this practice, I was told that if the LAA was ‘pushed’ into giving an earlier decision in advance there was the risk that the decision would be rushed.

I was not told and do not understand why, if this is the standard approach or practice of the LAA, it was not followed in this case. There was no reference to this practice in the second email sent by the LAA on 22 December nor in the email of 12 January.

I put to one side, and differentiate cases, where the basis of threshold and/or the material facts upon which the local authority relied in the care proceedings were in dispute. The court would have to give a judgment in which findings of fact were made to establish the relevant factual matrix.

I also put to one side, and differentiate, HRA claims where (i) the issues are fully contested and the court needs to determine disputed facts, and (ii) the court then has to decide whether there has been a breach or there have been breaches of a claimant’s human rights before embarking on an assessment of what damages, if any, should be awarded.

In cases where there is a dispute about the essential factual matrix in either the care proceedings and/or the HRA claim it is self evident that the LAA will need to know the court’s findings and ultimate conclusions before it is able to make a decision on whether the statutory charge is applicable to any damages awarded to the claimant in the HRA claim.

The position is quite different, however, where the claimant and the local authority have reached a settlement of the HRA claim, at least, in relation to the factual basis upon which it is admitted that the local authority breached the human rights of the claimant. Whether or not the quantum of damages have been agreed or need to be determined by the court is irrelevant for these purposes. The factual matrix of the HRA claim is agreed and settled.

In these circumstances, I am at a loss to understand why the LAA cannot make a determination of whether the statutory charge is applicable to any award of damages. The issue for the LAA, pursuant to s.25 LASPO, is whether the factual basis of the HRA claim is ‘connected with’ the factual basis of the concurrent publicly funded care proceedings and thus whether the statutory charge is applicable. The quantum of any damages awarded in respect of the HRA claim, pursuant to s.25 LASPO and the Civil Legal Aid (Statutory Charge) Regulation 2013 (‘CLA(SC)R’), is immaterial to a determination of the applicability of the statutory charge in any particular case.

Therefore in relation to cases where liability is admitted and settled in a HRA claim, as in this case, I cannot see any reasonable justification why the LAA cannot, in short order, determine whether, on the facts of the individual case, the statutory charge will be applicable to any award of damages made on the HRA claim and thereafter to notify the court and the parties of its decision.

I go further. It is essential, in my judgment, that a court determining the quantum of a claimant’s HRA damages, where liability is admitted on an agreed basis, and determining any consequential orders for costs, must and should know the stance of the LAA on the applicability of the statutory charge.

On the facts of this case the advice written by counsel for the claimant on 22 March 2016 which was subsequently submitted to the LAA made perfectly clear and plain:

Therefore once the local authority had admitted liability in respect of the HRA claim in August 2016, I fail to see any impediment to the LAA properly being able to decide whether or not the statutory charge would be applicable on the facts of this case.

On the basis that I have found there was no significant or new information provided to the LAA from prior to the hearing on 8 December 2016 to the LAA’s email of 12 January 2017, I do not understand:

In the premises I find that there is no reasonable basis for the LAA to have:

By 12 January, two full working days before the final hearing, it would have been known, or should have been known, and clear that briefs would have been delivered to leading and junior counsel for the claimant and for the local authority. Thus costs had been unnecessarily incurred. I do not consider it unreasonable in these circumstances for the local authority to seek an order for costs against the Lord Chancellor.

If the decision of the LAA made on 12 January had been on 22 December I am satisfied that the most likely consequences would have been as follows:

I interpolate that in the best tradition of the Bar, Mr Allen acted for the claimant in the HRA claim pro bono. I am very grateful to him for doing so. The public funding certificate had been amended to cover only the instruction of leading counsel for the claimant.

I am in no doubt, for the reasons I have given, that the Lord Chancellor should bear the costs incurred by the claimant and the local authority between 22 December 2016 and this hearing. I accept that the costs incurred between 8 December, the last court hearing, and 16 December, when the Lord Chancellor was served with the order of 8 December, are de minimis and may be disregarded for the summary assessment of costs I am asked to undertake.

I consider an order for costs against the Lord Chancellor on the facts of this case to be fair, just, equitable and reasonable.

All parties agreed to a summary assessment of costs if I decided to make an order for costs against the Lord Chancellor.

In relation to the costs of the claimant between 8 December to the hearing on 17 and 18 January, the Lord Chancellor submitted that:

I consider the correspondence claimed for and the time spent on preparation of the case to be modest and reasonable. I cannot identify any excessive claim or expenditure. In respect of the instruction of leading counsel to argue the issue of the applicability of the statutory charge and/or to seek to persuade the court to make orders for costs which might ameliorate the impact of the same, I make three observations:

The costs claimed on behalf of the claimant are:

The local authority has agreed it is liable to pay the claimant’s costs up to the hearing on 8 December. It submitted that the Lord Chancellor should bear the costs thereafter. The local authority agreed, however, that if, for whatever reason, the Lord Chancellor was not ordered to bear the latter costs, the local authority would do so to ensure that H received the full amount of HRA claim damages awarded to him undiminished by any liability for costs. I am grateful to the local authority for adopting that stance.

I am satisfied that the Lord Chancellor should ultimately bear the claimant’s costs from the 9 December to the date of the hearing on 17 and 18 January but solely for the purpose of ensuring the claimant’s HRA claim damages are not at any risk of being reduced or wiped out by an adverse costs order against the Lord Chancellor, I shall order the local authority to pay the whole of the claimant’s costs summarily assessed in the sum of £16,988.86. I shall then order the Lord Chancellor to pay to the local authority that portion of those costs which relate to events post 8 December, namely £11,501.36.

The Lord Chancellor makes no submission on the local authority’s application for the additional costs in respect of the care proceedings in the grand sum of £135.00. I make the requisite order for costs against the Lord Chancellor in that sum.

The local authority seeks an order for the additional costs incurred on the HRA claim in the sum of £11,060.10 against the Lord Chancellor. In response it is submitted that:

I disagree. The total additional costs sought in respect of work done by the local authority’s solicitors amount to £591. I am satisfied that is a modest and entirely reasonable sum. Issue is not taken with the fees charged by leading and junior counsel but with the need to instruct both. Mr Mansfield has been instructed by the local authority throughout all of the hearings before me. He drafted the immensely helpful chronology of emails and correspondence between the parties and the LAA. I am in no doubt that his continued instruction greatly assisted leading counsel and greatly reduced the reading and preparation required to be undertaken by leading counsel for the local authority. I am entirely satisfied that the novel points raised by the matter, especially on the issue of costs and guidance, merited the instruction of leading counsel. Furthermore I have been very greatly assisted by the detailed and helpful submissions made by Mr Tyler QC on behalf of the local authority.

In all these circumstance the Lord Chancellor shall pay the costs of the local authority from the hearing on 8 December (but effectively from 22 December 2106) summarily assessed in the sum of £10,060.10. I have, of course, deducted from the local authority’s claim for costs the sum of £1000 which I have determined would have been incurred in respect of the HRA claim in any event: see para 94(d) above.

On the basis of the agreed breaches of H’s human rights and on the basis of the cases to which I have been referred, I am entirely satisfied that an award of £21,500 accords just satisfaction to H.

In the premises I am satisfied I should approve the quantum of damages in that sum. I order that the damages shall be paid into court in accordance with the provisions of CPR r.21.11 and invested for H’s future benefit.

I was invited by leading counsel for the claimant and for the local authority to consider giving guidance on the issue of HRA claims made during the currency of public law proceedings.

I was referred to the decision of Munby J, as he then was, in the case of Re L (Care Proceedings: Human Rights Claims) [2003] EWHC 665 (Fam), [2003] 2 FLR 160. In that case he said at paragraphs 23 to 25:

“23.

There is, however, in my judgment, even if the point is not made explicitly clear in Bury, an important distinction to be drawn between (a) those cases in which a Convention issue arises whilst care proceedings are still on foot and (b) those cases in which a Convention issue arises after a final care order has been made and when the care proceedings have accordingly come to an end.

24.

In the latter class of case – that is, where the care proceedings have come to an end – the appropriate remedy may well be a free-standing application under section 7(1)(a) of the 1998 Act. Such an application can be made either on its own or in conjunction with some other application, for example (as in Re M, in Bury and in Re G) an application under section 39 of the 1989 Act for discharge of the care order. In such a case, as the President emphasised in Bury, the application should be heard in the Family Division and, if possible, by a judge with experience of sitting in the Administrative Court. Bury, it should be noted, was a case where the care proceedings had come to an end.

25.

In the other class of case – that is, where the care proceedings are still on foot – the position, in my judgment, is quite different. Here there is no need for any free-standing application under section 7(1)(a). Section 7(1)(b) will provide an appropriate remedy within the care proceedings themselves. Accordingly, Human Rights Act complaints arising before the making of a final care order can, and in my judgment normally should, be dealt with within the context of the care proceedings and by the court which is dealing with the care proceedings. I might point out that Re L is an example, albeit in the Family Division, showing just that procedure being adopted. In that case the mother’s complaints of numerous breaches of article 8 were litigated within the care proceedings and without any separate application being issued under the 1998 Act.”

And he continued at paragraphs 31 to 35 as follows:

“31.

(1) In the first place, human rights arguments based on the Convention can, and should, be dealt with within the context of the pending care proceedings. They can, and should, be dealt with by the court which is dealing with the care proceedings. Where there are care proceedings on foot there is, in my judgment, no need for any separate, let alone any free-standing, application. Section 7(1)(b) enables every court – including the FPC – to give effect to the parties’ Convention rights.

32.

(2) The second point is this. Only in a wholly exceptional case – and I confess that at present I have difficulty in envisaging such a case – could it possibly ever be appropriate to follow the procedure adopted in the present case, of treating the human rights arguments as raising a discrete issue to be hived-off for hearing in the Family Division whilst the care proceedings continue in the FPC or the County Court. There is no justification for splitting a case up in this way. If the case really requires to be transferred up then the whole case should be transferred.

33.

(3) Thirdly, there is no basis for transferring a care case up from the FPC to the County Court or from the County Court to the High Court merely because one of the parties seeks to raise a human rights argument or to rely on a Convention right. I dissent entirely from any suggestion that the FPC or the County Court is, as such, incapable of dealing with such points. Of course, a care case may raise some genuinely novel or complex human rights argument that can only be dealt with in the High Court. But that will not be so of the general run of such arguments. Most human rights claims in this area of the law involve no more than the application of principles which are now not merely well established in the Strasbourg jurisprudence but also expounded in the increasing number of reported domestic cases which have analysed and summarised this jurisprudence. The present case is a good example of the point. The FPC is, in my judgment, quite capable of determining by reference to the relevant domestic authorities – many of which, as it happens, I have referred to in this judgment – whether, as the mother alleges, the process here was flawed and unfair. Evaluating whether the local authority’s care plan is wrong, as she asserts, is precisely the kind of exercise that every court hearing care cases – the FPC included – has to deal with every day of the week. The procedural issue to which the present case has given rise perhaps needed to be resolved by the High Court; but that I have now done, I would hope for once and all. The substantive issues in the present case are quite within the capacity of the FPC or the County Court. They do not, in my judgment, require a High Court judge. (I note in passing that I have not been referred to a single decision of the European Court of Human Rights.)

34.

(4) Next I should like to emphasise two practical points. Human rights arguments should be identified and brought to the attention of the court at the earliest possible opportunity; and if a care case is to be transferred up that should also be done at the earliest possible opportunity and as quickly as possible. It is most unfortunate that in this case, where the point arose following a decision taken on 21 November 2002 and embodied in an amended care plan filed on 29 November 2002, and where the mother’s application was received by the FPC on 24 December 2002, it was not issued by the FPC until 30 January 2003, not heard by the FPC until 12 February 2003 and then not considered by the High Court until 19 March 2003. The National Protocol which is due to take effect later this year is going to require that, save in exceptional or unforeseen circumstances, every care case is to be determined not later than 40 weeks after it has first been commenced. In the present case the choice of what can now be seen to have been an inappropriate procedure has consumed almost four months – the period from 21 November 2002 to 19 March 2003 – and that in a case which started as long ago as 11 March 2002. Such delays are quite inconsistent with an overall timetable that requires care cases to be concluded within a little over nine months. I do not in any way criticise those involved in the present case, who were faced with a procedural problem to which the answer was not clear and who can be forgiven for deciding to proceed as they did. I hope that the position is now clear and that similar delays will not be allowed to occur in future.

35.

(5) Finally, there is, as I have pointed out, nothing to be gained by invoking the inherent jurisdiction of the High Court in relation to children if all that is in issue are claims arising under the Convention. There may, of course, be some other reason why it is necessary to invoke the inherent jurisdiction – for instance if some difficult question of medical treatment arises whilst a care case is on foot – but the existence of a human rights argument will not of itself require or justify the invocation of the inherent jurisdiction.”

The procedures set out by Munby J. in Re L were expressly approved by and received the “whole-hearted endorsement” of the Court of Appeal in Re V (Care Proceedings: Human Rights Claims) [2004] 1 FLR 944, per Wall LJ at para 98.

In Re L Munby J was dealing with an application for injunctive relief under the HRA 1998 and not with a claim for damages. Furthermore the case was not concerned with the applicability of the statutory charge to an award of HRA damages in respect of the costs incurred under a public funding certificate in respect of public law proceedings. The same observations apply to the decision of the Court of Appeal in Re V.

I respectfully agree with Munby J’s general proposition that a court hearing public law proceedings should deal with any associated HRA claim brought by one of the parties to the care proceedings. His concern was to prevent the proliferation of satellite litigation in respect of HRA claims. The judgment should not be read, and was plainly not intended to be read, as requiring a party seeking HRA damages to issue his or her claim within the existing public law care proceedings. On this basis the decision in Re L, and the decision in Re V, may be distinguished from proceedings in which a HRA claim is pursued and damages are sought. Therefore, where the remedy sought in the HRA claim is not limited to injunctive or declaratory relief but includes a claim for damages, it is almost inevitable that those representing the Claimant will be well advised to issue separate proceedings and to seek the issue of a separate public funding certificate because of the potential applicability of the statutory charge in respect of any HRA damages awarded.

Where liability and the quantum of damages are agreed, and the only issue is the court’s approval of the infant settlement, the same principle of issuing separate proceedings applies, namely the issue of a Part 8 claim.

Where damages are sought in just satisfaction of a HRA claim during the currency of public law proceedings, I provide the following guidance:

I entirely accept and respectfully agree with the decision of Mostyn J in the case of R(Faulkner) v. Director of Legal Aid Caseworker [2016] EWHC 717 where he said at paragraphs 37 and 38:

“37.

I accept that an award of damages made under Article 5 (5) of the European Convention on Human Rights is a serious matter. Detention by the State is, on any view, a very bad business. The award of damages - although they are customarily modest - should reflect the fact that it is only in Article 5 (5) of the Convention that compensation is mentioned. However I do not accept that awards of damages for State detention pursuant to the Convention are a class apart from all other types of damages. I do not accept that because they are awarded to Mr Faulkner as a victim of human rights violation that they should be subjected to a process of immunisation in the way that perhaps damages for personal injury or an award of damages for, say, the loss of an eye or a leg would not. Naturally, State detention is a bad business but the consequences of many personal injuries are far more long-enduring than temporary State detention as happened in this case by virtue of delay in convening a Parole Board hearing.

38.

It is for these reasons that I reject the argument that there is some kind of special status or numinous quality to be attached to these damages. These damages are to be treated under the costs regime, in my judgment, in exactly the same way as any other damages. It is therefore for these reasons that the claim for judicial review is dismissed.”

I agree HRA damages against the state for breaches of Convention right by the State are not currently ‘ring fenced’ from the applicability of the statutory charge.

The issue I raise, in the context of HRA claims brought by children, and by parents, during the currency of pending care proceedings, is whether it is just, equitable or reasonable that damages awarded to a child, or to a parent, as a result of breaches of his/her Convention Rights by one organ of the State should be recouped by another organ of the State in respect of public law proceedings which would otherwise not be recoverable. Public funding in such cases is non means tested and non merits based. Furthermore, save in exceptional circumstances, the local authority issuing the care proceedings is not liable to pay the costs of any other party: Re T [2012] UKSC 36.

I very much doubt that such a recoupment is just, equitable or reasonable. In the vast majority of cases the effect of the recoupment of the child’s or parent’s costs of the care proceedings will be to wipe out the entirety of the HRA damages awarded. In this event, the child or the parent will not receive a penny.

In making these observations, I have well in mind that:

Nevertheless, I question whether the time has come to exclude a child’s and/or parents HRA claim damages from the application of the statutory charge in relation to costs incurred in ‘connected’ public law proceedings within the meaning of s.25 LASPO. This is, of course, solely a matter for the Lord Chancellor.