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(Court of Appeal, McFarlane LJ, 6 February 2013)
The local authority sought a wasted costs order against the parents' solicitors in care proceedings. The Court of Appeal refused the parents permission to appeal a decision not to reopen a fact-finding investigation. The local authority contended that the solicitors' conduct amounted to improper, unreasonable or negligent litigation conduct sufficient to trigger the court's jurisdiction under s 51(6) of the Senior Courts Act 1981 to award wasted costs.
A fact-finding hearing determined the parents were responsible for a number of non-accidental injuries sustained by their child. The parents sought to reopen the investigation in light of a change of medical understanding in relation to rickets and brittle bone disease following the decision in Islington London Borough Council v Al Alas and Wray  EWHC 865 (Fam),  2 FLR 1239. In Re A (Permission to Appeal Fact-Finding Judgment)  EWCA Civ 1477,  FLR forthcoming, permission to appeal was refused.
The local authority claimed the parents' representatives had failed inter alia in their duty to provide full and frank disclosure; the medical expert was not instructed in a manner which was in compliance with Part 25 of the FPR 2010; once the medical report was available the decision to press on with the appeal went beyond the bounds of pursuing a hopeless case and amounted to an abuse of the court process.
The words in Re McC (Care Proceedings: Fresh Evidence of Foreign Expert)  EWCA Civ 165,  2 FLR 121 were entirely plain and clear that there was an obligation to seek leave from the court before instructing a fresh expert. However, the error in this regard was in no way causative of any wasted costs and if the matter had been properly approached the outcome would have been the same.
Despite litigation conduct which at times fell woefully short of that which was to be expected, none of the errors had been causative of costs being wasted by any of the opposing parties. Application dismissed.
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