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Family Law

The leading authority on all aspects of family law

07 MAR 2016

Re L (Case Management: Wasted Costs) [2016] EWFC B8

Re L (Case Management: Wasted Costs) [2016] EWFC B8
This judgment was delivered in private. The judge has given leave for it to be reported on the strict understanding that (irrespective of what is contained in the judgment) in any report no person other than other than those identified by name in the judgment itself may be identified by name or location and that in particular the anonymity of the child and the adult members of his family must be strictly preserved.

Case No. LE15CO0562

IN THE FAMILY COURT SITTING AT LEICESTER


4th March 2016


Before

His Honour Judge Clifford Bellamy
(judgment handed down on 4th March 2016)

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Re L (Case Management: Wasted Costs)

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JUDGMENT

Judge Bellamy:

[1]  Leicestershire County Council applies to the court for a care order in respect of L, a boy now aged 14 months. On 25th January 2016 the case came before me for a finding of fact hearing with a time estimate of 2 days. On the first morning it was immediately apparent that as a matter of fairness to the parents the hearing would have to be adjourned. I indicated that on 26th January I would consider whether I should exercise my powers under s.51(6) of the Senior Courts Act 1981 with respect to the costs wasted as a result of the adjournment. This judgment relates only to that issue.

Background

[2]  The mother is aged 17. The father is aged 22.

[3]  The mother has been accommodated by the local authority under s.20 of the Children Act 1989 since August 2014. In anticipation of L’s birth the mother was placed in a mother and baby foster placement. In March 2015 that placement broke down. The mother and L moved to a supported mother and baby placement. On 28th April the mother sought advice from a family support worker concerning a mark on L’s cheek. The family support worker was not available. The next day the mother took L to her GP. The GP referred L to a paediatrician.

[4 L was seen at the hospital later that day. Upon examination L was found to have small bruises to his left cheek, right hand and both forearms. A specialist paediatric registrar was of the opinion ‘that these injuries are consistent with non-accidental injury’.

[5]  A note in the hospital records indicates that medical photographs of the bruising were taken the next day, 30th April.

[6]  A skeletal survey was also undertaken on 30th April. This revealed a healing fracture of the posterior aspect of the left 5th rib.

[7]  A referral was made to the Child Abuse Investigation Unit. Later that day both parents were interviewed under caution.

[8]  L was discharged to a foster placement on 1st May. On 5th May the mother and L moved to a mother and baby foster placement with 24 hour supervision.

[9]  The parents were interviewed under caution a second time on 3rd July (the father) and on 9th July (the mother).

[10]  On 24th August the police took the decision to take no further action. The reason for that decision is noted as ‘insufficient evidence’.

Litigation history

[11]  The local authority issued these proceedings on 3rd June 2015. Upon issue, the local authority sought an interim care order. The case was listed for a contested hearing on 19th June. In the event, the parents did not oppose the making of an interim care order. The hearing was treated as a case management hearing.

[12]  The range of case management orders made at that hearing included an order requiring the local authority to serve copies of L’s health visitor, GP and hospital records ‘to include any images’, by 3rd July; an order that Leicestershire Police should disclosure to the local authority by 20th July ‘witness statements, interviews, photographs and medical reports in respect of the injuries’; an order requiring the local authority to serve the material disclosed by the police on the other parties ‘on receipt’; and an order permitting the parties jointly to instruct medical experts (Dr J, a consultant paediatric radiologist, and Dr W a consultant paediatrician). An Issues Resolution Hearing was listed on 30th October.

[13]  The local authority subsequently issued an application for permission to undertake drug testing of both parents. That application was heard on 14th July. An order was made by consent.

[14]  The experts reported on time. On 6th October L’s solicitor sent an e-mail to the court indicating that the Children’s Guardian was of the opinion that there needed to be a finding of fact hearing. The e-mail said that the guardian ‘will not be in a position to make a final recommendation to the court before hearing the evidence about the injuries’.

[15]  The case was listed on 21st October to consider that issue. All parties were agreed that there needed to be a finding of fact hearing. The judge agreed. The Issues Resolution Hearing listed on 30th October was vacated. Directions were given for a finding of fact hearing before me on 25th and 26th January.

[16]  The local authority filed a case summary in readiness for the hearing on 21st October. With respect to the issue of compliance with previous orders the case summary indicated that all previous case management directions had been complied with. That statement was not accurate. The medical photographs had not been disclosed. The audio recordings of the parents’ police interviews had not been disclosed and neither had any transcripts of those interviews.

Police disclosure

[17]  Police disclosure was due by 20th July. On 8th July the police sent an e-mail to the local authority attaching its disclosure documents but with the caveat that it did not have any interview tapes or photos available in relation to this investigation. In written submissions on behalf of the local authority it is submitted that the local authority had no reason to doubt this. However, just a few paragraphs later it is conceded that the material disclosed included a summary of the police interviews. I am in no doubt that from 8th July the local authority knew, or would have known had they considered the police disclosure with care, that it was likely that the police had audio recordings of the parents’ first interviews.

[18]  On 14th July the local authority served the police disclosure upon the other parties. In a covering e-mail it said that the police investigation was ‘an ongoing investigation but this is all the information they have so far’. No party expressed concern about the absence of the recordings (or transcripts) of the parents’ police interviews.

[19]  On 14th October the local authority solicitor sent an e-mail to the police asking, ‘could you let me know if there is any further disclosure to be made on this one at all please, I don’t believe police are taking it further.’ That e-mail was sent to someone who appears to be the local authority’s usual point of contact at Leicestershire Police and whose job title is ‘Lead Disclosure Assistant’. There is no evidence of any response from the police.

[20]  The failure of the Leicestershire Police to disclose the audio recordings of the parents’ interviews is an issue that could and should have been addressed at the hearing on 21st October. It wasn’t.

[21]  On 2nd November the mother’s solicitors sent an e-mail to the local authority requesting transcripts of the parents’ police interviews. On 3rd November, the local authority sent another e-mail to the police: ‘I understand that parents undertook voluntary interviews. Do you have these please and any notes of interview.’ Once again there is no evidence of a response from the police.

[22]  As a result of prompting from the mother’s counsel, who had only recently been briefed to appear at the finding of fact hearing, on Wednesday 20th January the mother’s solicitors sent a further e-mail to the local authority requesting missing documents including transcripts of the parents’ police interviews and photographs of the bruising sustained by L.

[23]  The local authority solicitor immediately contacted the police. Again the e-mail was sent to the Lead Disclosure Assistant. The solicitor said:

‘Could you come back to me urgently as this one starts its hearing next week as to whether you have copies of the parents (sic) police interviews at all and whether you had an (sic) copies of the photographs yet.’

[24]  On this occasion the police responded promptly. The reply reads:

‘I apologise in advance but I am not on duty tomorrow for a personal matter, I am however back to work on Friday 22nd January 2016 at which time I shall respond to this enquire (sic) and ascertain if there are any interviews & photos present in the case.’

[25]  Given that there were only two working days left before the finding of fact hearing was due to begin, that response was unhelpful. The local authority replied immediately:

‘I would need to collect on Friday as the hearing starts Monday and I need to get them transcribed. If there is anyone who could clarify any sooner it would be helpful.’

[26]  There was no response to that message. The next e-mail from the local authority to the police was sent on Friday 22nd at 09.25am:

‘Please can you let me know urgently whether you have the parents (sic) interviews plus any transcripts and also whether you have any photographs. This is really really urgent as the hearing starts on Monday.’

[27]  The audio recordings of the parents’ police interviews were provided to the local authority later that day (22nd January). The local authority made immediate arrangements for the recordings to be transcribed on an expedited basis. In an e-mail counsel for the local authority offered to supply copies of the audio recording to the other advocates. She promised that transcripts would be ‘circulated by e-mail as soon as they can be obtained.’ The transcripts were e-mailed to the other advocates in the early hours (01.00am) of 25th January (the first day of the finding of fact hearing).

[28]  The local authority concedes that it did not chase the police as hard as it should have done.

Disclosure of medical photographs

[29]  As I indicated earlier, medical records were disclosed promptly. Although it was clear from the records that medical photographs had been taken they were not included in the material received by the local authority.

[30]  Notwithstanding the fact that Dr W should have been sent the photographs to enable him to express an informed expert opinion on what was believed to be bruising sustained by L, no party raised any issue concerning the absence of the photographs until 20th January 2016. In an e-mail to the local authority the mother’s solicitors requested copies of any photographs of L’s injuries. The local authority said that it would enquire of the police as there were none contained in the medical disclosure.

[31]  A chronology prepared for this wasted costs hearing notes that on 21st January,

‘[child’s] solicitor emailed LA confirming Dr W didn’t see photographs of injuries. LA emailed saying would enquire with police as there were none in the medical disclosure. M’s sol emailed LA confirming M recalled photographs being taken at the hospital. LA emailed hospital…’

[32]  Later that day the local authority wrote to the hospital, saying,

‘further to my telephone conversation. We have previously been supplied with LRI records in relation to the above named child. A Fact Finding Hearing is due to commence tomorrow in relation to L and we need to establish if any photographs of the bruising injuries sustained by L exist and if they do then we need copies of the same. Please can you confirm whether such photographs are available and when we would be likely to receive copies. If there are no photographs please can you confirm that this is the case so that we might inform the court tomorrow.’

The reference to a hearing ‘tomorrow’ (22nd January) was wrong. The hearing was due to commence on 25th January.

[33]  The hospital replied promptly and helpfully:

‘I can confirm that a total of 4 photos were taken of L. I have passed your request on to out (sic) Access to Health Records dept who will then arrange for these to be placed on an encrypted disc. I am not sure how long this will take but if you need to chase it up they can be contacted on [telephone number supplied].’

[34]  On 22nd January the local authority wrote to the hospital again:

‘Please can you explain why the photographs were not included in the LRI records that we were originally sent and why they cannot be sent to us this morning via secure email. If we do not receive them today then the hearing on Monday may have to be adjourned. Your prompt reply would be appreciated as we will have to inform the court of the current situation.’

Later that day the local authority collected the photographs from the hospital, e-mailed them to Dr W and sent them to him on a disc by special delivery.

Finding of fact hearing

[35]  On Friday 22nd January counsel for the local authority sent an e-mail to all parties, the key parts of which read as follows:

“Please find attached all the documents which have been circulated today, in one easy-to-access email with documents paginated wherever possible, so that I know everyone has received everything….updated index…updated chronology…case summary…threshold…statement from the foster carer…updating statement from the social worker…[experts’] emailed responses to further question each.
Transcripts of the police interviews with each parent will be circulated by email as soon as they can be obtained, and hard copies will be brought to court by my instructing solicitors on Monday…If anyone wants to have the audio, please let me know asap?
Photographs of the bruises will be circulated by email as soon as they can be obtained, and hard copies will be brought to court by my instructing solicitors on Monday. Dr W will have a DVD of the originals.
I will be seeking leave to file all of the above on Monday - please let me know if you oppose any/all of these…”

[36]  During the afternoon of Saturday 23rd January I received an e-mail from counsel for the mother. It reads:

“I firstly apologise for disturbing you at the weekend when no doubt you would benefit from some rest from you working life. However, in the event you may be preparing for Monday's hearings over the weekend I make the following observation and request.
I note that the LA has included a 23 page statement dated 21.1.16…in the bundle for the above FFH listed to commence Monday 25.1.16. This is among other documents there is as yet no permission to file, some of which I understand we may be sent by email over the weekend! The LA had not indicated to solicitors for the respondent parents that they intended to serve and seek permission to file a further statement. Solicitors only became aware once the statement arrived by email on Friday 22.1.16, when impossible to take instructions from the mother.
At this point, in the event you begin any preparatory reading before Monday, I invite you not to read the statement before this is addressed further at court.
I have cc the advocates I understand are undertaking this hearing.”

[37]  Two hours later counsel for the local authority responded, saying:

“I'm sorry for any concern caused by my decision to provide everyone with paginated copies of the updating documents on Friday. I made clear in my email that I would be seeking permission to file the documents, and asked anyone who sought to challenge their admissibility to let me know, so I was not working under the misapprehension that the LA already had leave to file them, but I took the view that if they were admitted, it would be more helpful if we were all able to prepare using the same pagination, and that everyone including the court would need to be aware of their contents in order to reach a decision as to whether or not they should be admitted. 
I apologise for the late service. As soon as I was aware on Thursday afternoon that the social work statement was being prepared I asked that it be circulated asap as I was conscious of the shortage of time and the difficulty with taking instructions. I was only aware of the police interviews on Friday, and I understand that is when the police provided the tapes to the LA so I am grateful to my instructing solicitor for making arrangements for them to be transcribed so quickly, but again I appreciate the difficulties this causes with taking instructions from the parents. However, the police disclosure has already been ordered, and the parents' own contemporaneous accounts are likely to be important to the fact finding decision.
I hope we will be able to deal with these difficulties on Monday morning.”

[38]  In a second e-mail later that evening, counsel for the local authority sent me copies of all of the documents that had been sent to the other parties on 22nd January including the 23-page social work statement objected to by the mother for which permission to file had neither been given nor sought.

[39]  On the first morning of this hearing the local authority filed and handed to counsel for the other parties copies of the transcripts of the four police interviews of the parents. The transcripts run to a total of 124 pages. Counsel for the parents needed to read them, go through them with their clients and take instructions on them. The local authority also indicated its intention to seek permission to rely upon the additional 23-page statement from the social worker to which I referred earlier. Dr W was due to give evidence by video link at 12.30pm. Dr W was not available to give evidence on 26th January.

[40 It is possible that the transcripts of the parents’ police interviews may have given rise to additional questions for the medical expert. The consequences of the late service of the transcripts, the need to determine the contentious issue concerning the local authority’s application for permission to rely upon a further statement by the case holding social worker and the time the parents’ counsel would have needed to go through those documents with the parents, meant that it would have been impossible to complete the hearing within the two days allocated. As a matter of fairness to these parents, and in particular to the mother who is herself a minor, an adjournment was inevitable.

The duty to comply with case management orders

[41]  The starting point for any discussion concerning the duty to comply with case management order is the Family Procedure Rules 2010 (‘FPR’).

[42]  FPR Part 1 provides that:

‘1.1 The overriding objective
(1) These rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly, having regard to any welfare issues involved.
(2) Dealing with a case justly includes, so far as is practicable—

(a) ensuring that it is dealt with expeditiously and fairly;
(b) dealing with the case in ways which are proportionate to the nature, importance and complexity of the issues;
(c) ensuring that the parties are on an equal footing;
(d) saving expense; and
(e) allotting to it an appropriate share of the court's resources, while taking into account the need to allot resources to other cases.

1.2 Application by the court of the overriding objective
The court must seek to give effect to the overriding objective when it—

(a) exercises any power given to it by these rules; or
(b) interprets any rule.

1.3 Duty of the parties
The parties are required to help the court to further the overriding objective.

1.4 Court's duty to manage cases
(1) The court must further the overriding objective by actively managing cases.
(2) Active case management includes…
(h) encouraging the parties to co-operate with each other in the conduct of proceedings; …
(m) giving directions to ensure that the case proceeds quickly and efficiently.’

[43]  There are some special provisions concerning public law proceedings. They are to be found in Chapter 3 of FPR Part 12. Rules 12.22 and 12.24 are of particular importance:

‘12.22 Timetable for the proceedings
In public law proceedings other than Part 4 proceedings, in so far as practicable the court will draw up the timetable for the proceedings or revise that timetable with a view to disposing of the application without delay and in any event within 26 weeks beginning with the date on which the application is issued.

12.24 Directions
The court will direct the parties to—

(a) monitor compliance with the court's directions; and
(b) tell the court or court officer about—

(i) any failure to comply with a direction of the court; and
(ii) any other delay in the proceedings.’

[44]  The message from all of this is simple. There is a duty on the court to actively manage cases. The purpose of active case management is to further the overriding objective. There is a duty on the parties to assist the court in undertaking that task. The duty to assist the court includes a duty to comply with case management directions, a duty to monitor compliance with the case management directions and a duty to inform the court about any failure to comply with a case management direction and about any other delay in the proceedings.

[45]  Recent authorities have emphasised both the obligation to comply fully and timeously with case management orders and the likely consequences of failure to comply.

[46]  In Re W (Adoption Order: Leave to Oppose); Re H (Adoption Order: Application for Permission for Leave to Oppose) [2014] 1 FLR 1266, Sir James Munby P underlined the point that:

‘[52] The law is clear. As Romer LJ said in Hadkinson v Hadkinson [1952] P 285, 288, in a passage endorsed by the Privy Council in Isaacs v Robertson [1985] AC 97, 101:

“It is the plain and unqualified obligation of every person against, or in respect of whom, an order is made by a court of competent jurisdiction, to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void.”

For present purposes that principle applies as much to orders by way of interlocutory case management directions as to any other species of order. The court is entitled to expect – and from now on family courts will demand – strict compliance with all such orders. Non-compliance with orders should be expected to have and will usually have a consequence.’

[47]  In A Local Authority v DG and Others [2014] EWHC 63 (Fam), [2014] 2 FLR 713, condemning what he described as ‘the wholesale failure of the parties' in care proceedings before him to comply with case management directions, Keehan J went on to make the point that (para [43]):

“Family practitioners must wake up to the fact that, whatever the difficulties presented by public funding issues and/or the pressure of work, the court will no longer tolerate the failure of parties to comply timeously with court orders. Those failures simply lead to unacceptable delays in the proceedings which are wholly inimical to the welfare of the children involved.”

[48]  In Kent County Council v C, G and A [2014] EWHC 604 (Fam), [2015] 1 FLR 115, Theis J had similar cause to condemn what she called the ‘air of indifference by the parties as to the fact that there had been woeful non-compliance with court orders'. She added this (para [12]):

“There needs to be a more hands-on approach by all parties with regard to compliance with court orders. No party should be able to sit back as a spectator and watch non-compliance with orders and not shoulder any responsibility that flows as a result of those failures. The air of indifference by all parties in this case at the hearing in September to the fact that the father had not been served for five months was shocking.”

[49]  In London Borough of Bexley v V and Others [2014] EWHC 2187 (Fam), [2014] Fam Law 1396, Keehan J denounced what he called ‘the contumelious failure of the London Borough of Bexley to comply with directions set out in an order' he had earlier made in care proceedings. He said (paras [8]–[9]):

“[8] I understand that social work professionals and lawyers, whether engaged by public authorities or in private practice, are under enormous great strain in the current circumstances and economic climate, particularly given changes to public funding, but that does not relieve them of the obligation to comply with orders made by the court. The failures by the London Borough of Bexley in this matter are stark. This hearing would not have been required if they had complied with their orders and, in my judgment, it was right that this matter was listed at the earliest opportunity to address those failings and to enable the other parties to make submissions as to when they could comply with their obligations to file documents. Accordingly, I am in no doubt that it is right that the local authority should be ordered to pay the costs of this hearing.”

[50]  The message could not be clearer. It is concerning that judges still have to repeat that message so frequently.

Non-compliance with case management directions - who is at fault?

[51]  In this case, case management orders were made promptly (on day 14) for the disclosure of medical records and police records. The medical records were disclosed promptly save for the photographs. The failure to disclose the medical photographs was not identified by any party until 20th January 2016.

[52]  The police responded promptly to the disclosure order but failed to disclose the audio recordings of the parents’ police interviews. The first approach to the police for ‘further disclosure’ was made by the local authority on 14th October. The first time the lack of this material was raised by any other party was in an e-mail from the mother’s solicitor to the local authority on 2nd November.

[53]  Who is responsible for these failings? Is the failure to disclose the medical photographs the responsibility of the hospital or of the local authority for not going back to the hospital to ask where the photographs were, or of the other parties for not raising this issue either with the local authority or with the court? Is the failure to disclose the audio recordings of the parents’ police interviews the responsibility of Leicestershire Police (who were ordered by the court to disclose ‘witness statements, interviews, photographs and medical reports in respect of the injuries’), or of the local authority (to whom the police were ordered to make disclosure and upon whom was laid the obligation of disclosing the police material to the other parties), or of the other parties for their delay in raising this issue either with the local authority or with the court?

[54]  Leicestershire police were ordered to make disclosure to the local authority. The local authority was ordered to disclose to the other parties the material received from the police. It was also ordered to obtain and disclose medical records. Is the scope of the local authority’s duty limited to forwarding on to the other parties the material received from the police and the hospital? In my judgment, it is not so limited. The local authority is not providing a postal service. It is under a duty not only to disclose what it receives but also,

(a)  to consider with care the material received from the police and hospital;
(b)  to satisfy itself that the disclosure complies with the terms of the relevant case management direction; if it does not comply then,
(c)  to identify any documents or categories of document that appear to have been omitted;
(d)  to contact the police/hospital promptly seeking immediate disclosure of the missing documents; and if disclosure of the missing documents is not made promptly then,
(e)  to inform the court and seek urgent directions; and
(f)  to keep the other parties informed.

[55]  Whilst the primary duty for obtaining and disclosing police and medical records rests with the local authority, it is clear from the rules to which I have referred that the other parties also have a responsibility. They, too, are under a duty to assist the court in the process of active case management and to inform the court of any non-compliance. With respect to police and medical disclosure there is a duty,

(a)  to consider with care the material disclosed by the local authority;
(b)  to satisfy itself that the disclosure complies with the terms of any case management direction relating to that disclosure;
(c)  to identify any documents or categories of document that appear to have been omitted;
(d)  to inform the local authority promptly with respect to any gaps in the disclosure; and, if the missing documents are not provided promptly,
(e)  to inform the court and seek urgent directions.

[56]  In my judgment it is clear from the rules and authorities to which I have referred that these duties exist. They are a necessary part of the process of enabling and assisting the court to comply with its duties to further the overriding objective and to complete care cases within 26 weeks.

[57]  In the circumstances of this case I am satisfied that the responsibility for the failure identified rests primarily with the local authority. However, I am equally satisfied that the solicitors for the parents and the guardian also bear some responsibility.

Wasted costs orders – the law

[58]  Section 51 of the Senior Courts Act 1981 provides that,

(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;
(c)  the family court; and
(d)  the county court,
 shall be in the discretion of the court…

(6)  In any proceedings mentioned in subsection (1), the court may disallow, or (as the case may be) order the legal or other representative concerned to meet, the whole of any wasted costs or such part of them as may be determined in accordance with rules of court.
(7)  In subsection (6) “wasted costs” means any costs incurred by a party

(a)  as a result of any improper, unreasonable or negligent act or omission on the part of any legal or other representative or any employee of such a representative; or
(b)  which, in the light of any such act or omission occurring after they were incurred, the court considers it unreasonable to expect that party to pay.

[59]  The meaning of the words ‘improper’, ‘unreasonable’ and ‘negligent’ were considered by the Court of Appeal in Ridehalgh v Horsefield, and Watson v Watson [1994] 2 FLR 194 (‘Ridehalgh’). Giving the judgment of the court in Ridehalgh, Sir Thomas Bingham MR said (pages 204-205):

‘Improper, unreasonable or negligent’
A number of different submissions were made on the correct construction of these crucial words in the new s 51(7) of the Supreme Court Act 1981. In our view the meaning of these expressions is not open to serious doubt.
‘Improper’ means what it has been understood to mean in this context for at least half a century. The adjective covers, but is not confined to, conduct which would ordinarily be held to justify disbarment, striking off, suspension from practice or other serious professional penalty. It covers any significant breach of a substantial duty imposed by a relevant code of professional conduct. But it is not in our judgment limited to that. Conduct which would be regarded as improper according to the consensus of professional (including judicial) opinion can be fairly stigmatised as such whether or not it violates the letter of a professional code.
‘Unreasonable’ also means what it has been understood to mean in this context for at least half a century. The expression aptly describes conduct which is vexatious, designed to harass the other side rather than advance the resolution of the case, and it makes no difference that the conduct is the product of excessive zeal and not improper motive. But conduct cannot be described as unreasonable simply because it leads in the event to an unsuccessful result or because other more cautious legal representatives would have acted differently. The acid test is whether the conduct permits of a reasonable explanation. If so, the course adopted may be regarded as optimistic and as reflecting on a practitioner’s judgment, but it is not unreasonable.
The term ‘negligent’ was the most controversial of the three. It was argued that the 1990 Act, in this context as in others, used ‘negligent’ as a term of art involving the well-known ingredients of duty, breach, causation and damage. Therefore, it was said, conduct cannot be regarded as negligent unless it involves an actionable breach of the legal representative’s duty to his own client, to whom alone a duty is owed. We reject this approach:

(1) As already noted, the predecessor of the present Ord 62, r 11 made reference to ‘reasonable competence’. That expression does not invoke technical concepts of the law of negligence. It seems to us inconceivable that by changing the language Parliament intended to make it harder, rather than easier, for courts to make orders.
(2) Since the applicant’s right to a wasted costs order against a legal representative depends on showing that the latter is in breach of his duty to the court it makes no sense to superimpose a requirement under this head (but not in the case of impropriety or unreasonableness) that he is also in breach of his duty to his client.

We cannot regard this as, in practical terms, a very live issue, since it requires some ingenuity to postulate a situation in which a legal representative causes the other side to incur unnecessary costs without at the same time running up unnecessary costs for his own side and so breaching the ordinary duty owed by a legal representative to his client. But for whatever importance it may have, we are clear that ‘negligent’ should be understood in an untechnical way to denote failure to act with the competence reasonably to be expected of ordinary members of the profession.
In adopting an untechnical approach to the meaning of negligence in this context, we would however wish firmly to discountenance any suggestion that an applicant for a wasted costs order under this head need prove anything less than he would have to prove in an action for negligence: ‘advice, acts or omissions in the course of their professional work which no member of the profession who was reasonably well-informed and competent would have given or done or omitted to do’; and error ‘such as no reasonably well-informed and competent member of that profession could have made’ (‘Saif Ali v Sydney Mitchell & Co (A Firm) [1980] AC 198, at pp 218D, 220D, per Lord Diplock).
We were invited to give the three adjectives (improper, unreasonable and negligent) specific, self-contained meanings, so as to avoid overlap between the three. We do not read these very familiar expressions in that way. Conduct which is unreasonable may also be improper, and conduct which is negligent will very frequently be (if it is not by definition) unreasonable. We do not think any sharp differentiation between these expressions is useful or necessary or intended.’

[60]  Although there are more recent authorities in which wasted costs orders have been considered, including authorities in the family jurisdiction, it is clear that those authorities are for the most part examples of the application of the principles identified in Ridehalgh. Ridehalgh remains the leading authority on matters of principle.

Discussion

[61]  In this case no party suggests that the conduct of any other party has been improper or unreasonable. The issue is whether any party has been negligent. Whether conduct has been ‘negligent’ so as to give rise to the power to make a wasted costs order is both fact and context specific.

[62]  In care proceedings the context is clear. The context was well set out in the final report of the Family Justice Review in November 2011:

'68.  Robust judicial case management is important to reduce delay. Case duration statistics and research show that case management across the country is not sufficiently robust or consistent. Reform to judicial training and development needs to emphasise understanding of child development and how it affects children’s timescales and consequently case management decisions... 
69.  The judiciary should be more consistent in their approach to case management. Different courts take different approaches to case management in public law. These need corralling, researching and promulgating by the judiciary to share best practice and ensure consistency.
70.  This alone is not enough to tackle delay. Cases take far too long and previous attempts to tackle it have not succeeded. A firm approach is needed. Government should legislate to provide a power to set a time limit on care proceedings. The limit should be specified in secondary legislation. The time limit for the completion of care and supervision proceedings should be set at six months. There should be transitional provisions.
71.  We acknowledge that a time limit would not of itself guarantee success but it would give a strong focus to the wide ranging programme of fundamental reform that is required. It should in particular help to break what has been described as an accepted culture of delay.
72.  It would be the responsibility of the trial judge to achieve the time limit. Extensions to the six month deadline would be allowed only by exception. A trial judge proposing to extend a case beyond six months would need to seek the agreement of the Designated Family Judge/Family Presiding Judge as appropriate.
73.  Judges must set firm timetables for cases. Timetabling and case management decisions must be child focused and made with explicit reference to the child’s needs and timescales. There is a strong case for this responsibility to be recognised explicitly in primary legislation.’

[63]  As a result of amendments made to s.32 of the Children Act 1989, the court is under a statutory duty to ‘draw up a timetable with a view to disposing of the application (a) without delay, and (b) in any event within twenty-six weeks’. The purpose of the rules set out in the FPR is to ensure that ‘so far as is reasonably practicable…[the proceedings] are disposed of without delay’ (s.32(2)(b)).

[64]  In that context it seems to me that any act or omission which amounts to a breach of the duties I have identified and which leads directly to the wasting of court time and/or to delay in disposing of the case is likely to be regarded as ‘negligent’ for the purpose of s.51(7) of the Senior Courts Act 1981.

[65]  In this case, the disclosure made by the hospital omitted to include copies of the four photographs taken of the bruising sustained by L. It may well have been an accidental oversight. It matters not. The documents that were disclosed made it crystal clear that there were medical photographs in existence. Had the local authority considered that material with care it would immediately have appreciated that the hospital had medical photographs copies of which it had failed to include in the material disclosed.

[66]  I am equally satisfied that the other parties do not escape criticism. Once they had received the medical records from the local authority they, too, should have noticed that the records referred to the existence of medical photographs that had not been disclosed.

[67]  However, so far as concerns the medical photographs, the failures identified were not the cause of the finding of fact hearing being adjourned. Albeit at the eleventh hour, the photographs were obtained in sufficient time not to have caused – or indeed to have played any part in – the decision to adjourn the hearing.

[68]  The same cannot be said of the failure to obtain the audio recordings of the parents’ police interviews and of the consequent failure to disclose transcripts until the early hours of the morning of the first day of this hearing. Whilst there may be criticisms of Leicestershire Police for their tardiness in providing this disclosure, when seen in context it is clear that it is not that failure which led to the need to adjourn the finding of fact hearing but the absence of an appropriate response to that failure. Given the context in which negligence must be determined, I am satisfied that the local authority was negligent in failing to take appropriate and timely steps to obtain and disclose the audio recordings and to obtain and serve transcripts. I am equally satisfied that the other parties were negligent in failing to identify this omission and in failing to take a pro-active response in drawing the omission to the attention of the local authority and the court.

What costs have been wasted?

[69]  The local authority has been represented by counsel at this hearing. The local authority will have to pay her fees (a brief fee of £1250 and a refresher of £700), Given that the hearing at which counsel was briefed to appear has had to be adjourned, the local authority will have to meet counsel’s fees for two additional days. The fees payable to counsel for the hearing on 25th and 26th January (£1950) are in my judgment properly to be described as ‘wasted costs’.

[70]  That is not the only loss. In this case each parent has been represented by counsel. The child has been represented by his solicitor. All are funded by the Legal Aid Agency (‘LAA’) under its Family Advocacy Scheme (‘FAS’).

[71]  I am told that for the hearing on 25th January the estimated fees to which each advocate is entitled is as follows: counsel for the mother £1575.30, counsel for the father £1591.50 and the solicitor for the child £655.55. That is a total of £3822.35. For the hearing on 26th January (which should have been the second day of the finding of fact hearing but which was in the event used to hear submissions on the wasted costs issue and to make necessary case management directions) I am told that the estimated fees claimable are: counsel for the mother £1247.74, counsel for the father £1263.94 and the solicitor for the child, £476.92. That is a total of £2988.86. That gives an estimated overall claim under FAS of £6811.21.

[72]  I accept that some of the work undertaken on 25th and 26th January is work which needed to be undertaken in any event. For example, on the first day counsel spent time with the parents going through the transcripts of their police interviews and the late-filed additional social work statement. It is necessary to take a broad brush approach to the determination of the proportion of costs claimable under FAS that can properly be described as ‘wasted costs’. Doing the best I can, I assess that sum at £5000.

[73]  In addition to their entitlement under FAS, each legally aided solicitor is entitled to a standard fee for ‘legal representation’. Put shortly, that is a sum payable for preparing a case for hearing – for example, taking instructions from the client and preparing witness statements. The fixed fees payable are £2300 for representing a parent and £1754 for representing a child. There are circumstances in which it is possible to ‘escape’ from the standard fixed fee. If, calculated on an hourly rate basis, the fees for the work undertaken are more than two times the standard fee, a solicitor is entitled to be paid on an hourly rate basis for the work actually undertaken. In this case the mother’s solicitor expects to meet the ‘escape’ criteria, the father’s solicitor considers it possible that he will meet the ‘escape’ criteria and the child’s solicitor accepts that she will only be entitled to the standard fee.

[74]  During the last three days before the finding of fact hearing was due to commence there was frenetic activity in which all parties belatedly tried to obtain police material which could and should have been obtained months earlier. They have expended more time than would have been necessary had the disclosure issue been addressed at the time the problem arose. As a result of that unnecessary work, have there been any wasted costs? If there have been any wasted costs does the court have the power to disallow all or part of those costs in the exercise of its powers under s.51(6) of the Senior Courts Act 1981?

Disallowing costs payable to a legally aided solicitor

[75]  Navigating one’s way around the labyrinthine complexities of the current legal aid scheme is a significant challenge. For present purposes it is necessary to have regard to the Legal Aid Agency’s Standard Civil Contract 2013 specification: General Rules (section 1-6) (July 2015 amendment), to the Standard Civil Contract 2013 specification: Family category specific rules (section 7) (July 2015 amendment), to the Civil Legal Aid (Remuneration) Regulations 2013 and to the Civil Legal Aid (Remuneration) (Amendment) (No2) Regulations 2014.

[76]  The solicitors for the legally aided parties contend that disallowing part of a standard fee payable to a legally aided solicitor pursuant to the provisions of s.51(6) is not simply inappropriate but that it is not possible. The basis of that submission is that the standard fee for legal representation is a fixed fee payable irrespective of the amount of work undertaken (subject to the right to ‘escape’ from the standard fee to which I referred earlier). It follows, therefore, as a matter both of logic and of law, that so far as concerns the costs of any solicitor entitled only to the standard fee there cannot have been any ‘wasted costs’. In this case, even if a solicitor entitled only to the standard fee undertook work on 20th, 21st and 22nd January which would not have been necessary had the failure of police disclosure been identified at the time it arose, that solicitor will receive no extra payment for that work but will simply receive the fixed fee to which he or she would in any event have been entitled. A letter to the court from the LAA supports that argument,

[77]  The position would appear to be different so far as concerns the costs of a solicitor who ‘escapes’ the standard fee. As I noted earlier, that solicitor is entitled to be paid for the work undertaken on an hourly rate basis (the hourly rate being that prescribed in the Civil Legal Aid (Remuneration) Regulations 2013 as amended). In those circumstances it is clear that the argument set out in the previous paragraph does not apply. Even if the court does not have the power to make a wasted costs order against a solicitor entitled only to the standard fee (a proposition about which I am doubtful) there would seem to be no reason why the court could not make a wasted costs order against a solicitor who ‘escapes’ the standard fee.

[78]  However, the LAA raises a second issue and that relates to its power to act on an order made by the court under s.51(6) disallowing all or part of a legally aided solicitor’s entitlement to remuneration. In its letter to the court, the LAA asserts that,

‘The court could only disallow a solicitor’s costs under their contract with the LAA where the court is performing a detailed assessment pursuant to that contract (see paragraphs 6.37 – 6.38 of the Standard Contract Specification…) However, you could make observations to help the assessing authority (whether that is the LAA or the Court) in its assessment.
‘Where legally aided work falls under one of the Standard Fee Schemes, the LAA usually would have no choice but to pay the standard fees, unless the claim is not true, accurate and reasonable. The nature of the standard fee scheme is that in some circumstances a legal aid provider may receive a relatively high payment for not necessarily doing a large amount of work, whilst in the circumstances of a different case, the same standard fee may be considered to be relatively low. However, if you do make any observations on the amount of costs claimed and suggest that some costs should be disallowed, the possibilities, within the fixed fee scheme would be as follows:

1.  Claims can ‘escape’ the fixed fee where, if paid at hourly rates the solicitors would be paid more (i.e. for Legal Representation, where costs on an Hourly Rate basis would exceed twice the Standard Fee, the solicitors would be paid at hourly rates). If in the circumstances of this case the solicitors have escaped the fixed fee and are to be paid at hourly rates, any disallowance (or recommended disallowance) of costs on assessment could reduce the amount payable to the solicitors;
2.  The costs of the case can be disallowed in full, which would lead to a nil payment to the provider irrespective of the fixed fee scheme;
3.  If the solicitors have breached some term of the contract, such as the requirement to carry out all contract work in a timely manner and with all skill and care, and as a result caused the LAA a loss (for example if a further hearing were required because of the solicitor’s default which has led the LAA to make further payments), then the LAA could set off the loss it has been caused against any payment due to the solicitors (i.e. the fixed fee they would be due to receive)’

[79]  Paragraphs 6.37 and 6.38 of the Standard Contact Specification provide that:

Court assessment
6.37 Except where: 

(a) it is or may be necessary for the court to carry out a detailed assessment of costs payable to the Client by another party to the proceedings; or
(b) having regard to interests of the Client and public funds, the weight or complexity of the case and all the other circumstances, we consider it appropriate to direct that the costs be subject to detailed assessment, 

your Claim for payment for Licensed Work will be assessed by us.
6.38 A direction under Paragraph 6.37(b) may relate to an individual case or to any class of case, identified by the level of costs to be assessed or otherwise. In cases where costs are to be subject to assessment by the court, detailed assessment proceedings must be commenced within the time specified in the Civil Procedure Rules.

[80]  If the LAA’s submissions are correct then that would seem to represent a significant narrowing of the scope of s.51(6) in a case involving a legally aided solicitor. It would mean that although under s.51(6) the court could order a legally aided party’s solicitor to pay another party’s wasted costs, the court would have no power to disallow any wasted costs incurred by that same solicitor.

[81]  I note that neither the Standard Civil Contract 2013 specification: General Rules (section 1-6) (July 2015 amendment), or the Standard Civil Contract 2013 specification: Family category specific rules (section 7) (July 2015 amendment) refer to the court’s powers under s.51(6). With all due respect to the LAA, it seems to me that the key to understanding paragraphs 6.37 and 6.38 of the Standard Contract Specification is to be found in the heading: ‘Court assessment’. Those paragraphs deal with the question ‘who should assess my costs’. Section 51(6) addresses a completely different issue. Section 51(6) provides a power to penalise a solicitor as a result of whose conduct ‘wasted costs’ are incurred (whether another party’s costs or his/her own costs).

[82]  It is my preliminary view that the court’s power to make a wasted costs order is not confined in the way suggested by the legally aided solicitors and by the LAA. However, I am satisfied that in this case it is possible to dispose of the wasted costs issue without determining those points. That said, in my judgment the LAA’s arguments do raise important issues which need to be authoritatively addressed.

Conclusion

[83]  Statistics show that in recent months, nationally there has been a significant increase in the number of new care proceedings issued. Cafcass statistics show that over the ten months from 1st April 2015 to 31st January 2016 the number of new care proceedings issued was up by almost 13% on the previous year. During that same period The Family Court in Leicester experienced a 39% increase in new care cases – three times the national average. That increase in workload has not been matched by any increase in court resources. I make that point simply to underline the fact that court time is a precious resource. The court can ill-afford contested hearings being vacated because of the failure of one or more of the parties to comply adequately with the obligations placed upon them by the rules and by case management orders made by the court.

[84]  In this case I am satisfied that the solicitors for all four parties are responsible for the errors identified. All four were responsible for the wasting of court time and for the wasting of costs. I have identified wasted advocacy costs incurred by the legally aided parties amounting to £5000. I shall make a wasted costs order against the local authority requiring it to pay 50% of that sum, £2,500. I have also identified that the local authority has incurred wasted advocacy costs of £1950. I shall make wasted costs orders against the solicitors for the legally aided parties jointly to pay 50% of those costs (£975 i.e. £325 per solicitor).

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