(Family Court, Cobb J, 16 February 2017)
Costs – Human rights claim – Public funding – Award of damages – Statutory charging order under LASPO 2012 – Appropriate costs award
Costs orders were made in Children Act 1989 and Human Rights Act 1998 proceedings.
When the child was just one week old and still in hospital the local authority was granted an interim care order and he was placed with the paternal grandparents. The parents both had mild global learning difficulties and had been supported by adult services but no pre-birth referral to children’s services had been made. Two and a half months later the child was returned to the parents’ care where he had successfully remained ever since.
The parents and the child applied for declarations and damages under the Human Rights Act 1989 in respect of breaches to their Art 6 and Art 8 rights under the European Convention. The Children Act 1989 proceedings had been formally dismissed. The claimants also sought a costs award in relation to those and the HRA 1998 proceedings.
At a case management hearing the Local Authority conceded that declarations should be made that: the parents and child’s right to a fair trial pursuant to Art 6 of the European Convention had been breached by the failure to inform them of the initial hearing; the parents’ and child’s right to family life enshrined in Art 8 of the European Convention had been breached when the child was placed with the paternal grandparents. It was agreed that a sum of £3,750 was appropriate compensation to award the three claimants. The local authority also offered to pay the costs of the Children Act 1989 proceedings and £2,000 per claimant towards the costs of the Human Rights Act 1998 proceedings (later increased to £2,500). At that stage the parties were strongly encouraged to negotiate realistically.
Following a round table meeting the only issue left outstanding was that of costs. To date the claimants’ costs amounted to just under £80,000 while the local authority costs were £40,000.
Since the claimants were publicly funded any damages awarded to them would be absorbed by a statutory charge under s 25 of LASPO 2012. Cobb J noted that it was regrettable that the claimants were unlikely to obtain the amounts awarded to them due to the costs involved. However, the wide discretion afforded to the court did not mandate the power to make a substantive award of costs just so that the claimants benefited from the award.On the ordinary costs principles the claimants should be awarded their costs of the HRA 1998 proceedings up to the date of the case management hearing at which stage the local authority had accepted the declarations and made an open proposal to settle and at which time the claimants were encouraged to reach an agreement. The litigation conduct of the claimants was such that they had forfeited their right to recover the full amount of costs in respect of those proceedings. In addition they were entitled to the costs involved with the Children Act 1989 proceedings.