Thursday, February 07, 2013

Re A (A Child): Wasted costs application by local authority

Lord Justice McFarlane
A quick note on Re A (A Child) [2013] EWCA Civ 43, which concerned a local authority's application for a wasted costs order against a firm of solicitors that acted for parents in care proceedings.

The circumstances surrounding the application were that in 2010 the court found that a significant number of fractures detected in a very young baby were not capable of explanation on benign medical grounds, but were, on the balance of probability, the result of non-accidental injuries inflicted on the child by one or other of his two parents. At a hearing in June 2012 the parents attempted to persuade the judge to re-open the fact finding process on the basis of a change in medical understanding relating to rickets and brittle bone disease in particular following the decision in the case of London Borough of Islington v Al Alas and Wray [2012] EWHC 865 (Fam). That application was refused and, 51 days later, the parents issued a Notice of Appeal, but the Court of Appeal refused permission.

The Local Authority then applied for the wasted costs order, claiming that the parents' solicitors had, inter alia, failed in their duty to provide the court with full and frank disclosure of all relevant material, that they misled the court by an assertion in the grounds of appeal that they had had to prepare the case in a limited time period, that they withheld information, that they had failed to comply with the rules governing the instruction of experts and, lastly, that they had pressed on with the application for permission to appeal in circumstances where they should have known there was no prospect of success, a decision which went beyond the bounds of pursuing a hopeless case and amounted to an abuse of the court process. The Local Authority's criticisms were supported by the solicitor for the child.

Needless to say, the application was 'firmly resisted by counsel on behalf of the parents' solicitors'.

Giving judgment, Mr Justice McFarlane set out the law on wasted costs and then dealt with each of the criticisms levelled at the parents' solicitors. In respect of all but the last criticism mentioned above, he found that any failures by them had not resulted in additional costs being incurred. In respect of the last criticism, he concluded that the manner in which the application for permission was pursued arose almost entirely from the wholly over optimistic judgment of counsel and not from any improper or unreasonable act or omission of the solicitors.

Accordingly, the wasted costs application was dismissed.

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