Court warns over “chilling effect” of costs order in Children Act case

The parents of a brain-damaged girl whose parents won a High Court battle to take her to a hospital in Italy have been refused the costs of contesting an application by the Barts Health NHS Trust to withdraw her life-sustaining treatment.

Mr Justice MacDonald ruled in Raqeeb v Barts Health NHS Trust (Costs) [2019] EWHC 3320 (Admin) that to make such an order could have a “chilling effect” on trusts in similar situations.

The case of five-year-old Tafida Raqeeb – involving linked judicial review (JR) and Children Act 1989 proceedings – received huge media attention in the autumn.

In the former proceedings, Mr Justice MacDonald found that the trust made an unlawful decision to refuse to permit Tafida to travel to Italy, but declined to grant relief. In the latter, he dismissed the application by the trust for declarations that it was in her best interests for her current life-sustaining treatment to be withdrawn, a course of action that would have lead inevitably to her death.

The effect of these decisions was to allow her parents to move her to a hospital in Italy.

He upheld Tafida’s claim, through her litigation friend, for the costs of the JR proceedings as she was the successful party. However, he awarded only 80% to reflect that she was not successful in her submission that the decision of the trust had deprived her of her liberty pursuant to article 5 of the European Convention on Human Rights. The trust had argued for no order as to costs.

The parents as interested parties did not seek to recover their costs in the JR, but did for the Children Act proceedings. The trust again argued that the parties should bear their own costs.

Deciding the costs on the papers, MacDonald J said: “While it is the case that within those proceedings the parents persuaded the court to reach a conclusion consistent with their articulation of what was in Tafida’s best interests, and to that extent have been successful, in my judgment there are powerful arguments against making a costs order in favour of the parents in the proceedings under the Children Act 1989.”

The judge was “not at all persuaded” by the parents’ primary costs submission that to refuse to make a costs order against the trust, in circumstances where the proceedings engaged their core article 8 (right to family life) rights, would result in an unacceptable inequality of arms as between the parents and the state in breach of article 6.

“Most obviously, there was, as a matter of fact, no inequality of arms in the proceedings. The parents had the benefit of a highly experienced team of solicitors and were represented by specialist leading and junior counsel throughout the hearing. Within this context, it is entirely artificial (and, indeed, illogical) to argue that were a costs order not now to be made the parents article 6 rights would be breached for lack of equality of arms.

“If the parents had wished to argue that they would suffer from an inequality of arms in breach of article 6 unless, in the absence of legal aid, the trust funded their legal costs, then this argument fell to be run before the final hearing, supported by evidence that the parents would not have the benefit of legal representation unless a species of costs funding order was to be made.”

He noted, however, that such an application would have faced “significant difficulties”.

The judge continued: “Further, and within this context, absent any inequality of arms for the purposes of article 6, while I acknowledge there is an apparent inconsistency in the approach to public funding as between a parent who is facing care proceedings concerning the welfare of their child brought by the state, in the guise of the local authority, and a parent who is facing proceedings of the instant nature brought by the state, in the guise of an NHS trust, that is a matter for Parliament and not for the court…

“To make an order for costs against a public body simply to remedy the fact that Parliament has not provided for public funding in the circumstances in question would be impermissible unless such a costs order is justified on ordinary principles in the particular circumstances of the case. It is not for the court to fill a lacuna by making a costs order against an NHS trust where there is otherwise no principled basis for such an order on ordinary principles.”

This meant the application would be determined on the principles that ordinarily applied in proceedings concerning the welfare of children under the 1989 Act, namely that a costs order is made only in exceptional circumstances.

MacDonald J said the trust had no choice but to make the application, given that there was a disagreement between the parents and the treating clinicians as to Tafida’s best interests.

“Within this context, I accept that the consequences of making a costs order against a trust in the foregoing circumstances is likely to risk a chilling effect were the trust to be penalised in costs for bringing and ‘losing’ a finely balanced case which it is was its duty to bring before the court.

“More generally, if NHS trusts are at risk of a costs order on ‘losing’ an application under section 8 of the Children Act 1989 in a case of this nature, in what is already a complex, difficult and contentious area of law, I am satisfied that there is a risk that trusts will be deterred from making such applications by the tension between their safeguarding obligations in relation children who are not deriving benefit from life-sustaining treatment and the duty to fund the treatment needs of all patients.

“Further, I accept that there is a risk that where the parents have secured private funding for all treatment, the risk of costs will tempt trusts to depart from medical opinion and to prefer the fully funded position of the parents, which by preference avoids the costs risk. I am satisfied that each of these risks is not fanciful when the submissions of the trust are considered through the prism of the widely acknowledged pressure on resources in the NHS.

“Within this context, I further accept the submission of the trust that such an outcome would affect the children most in need of a judicial determination of their best interests, namely those where the decision is a finely balanced one and therefore where the ‘litigation risk’ presented by proceedings that put the trust at risk of costs which are concomitantly higher.”

The judge said there were no exceptional circumstances here, especially as the parents had raised a significant sum of money to fund legal costs. “In those circumstances, I am still less inclined to risk the disadvantages of departing from the ordinarily approach.”

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Costs News
Published date
12 Dec 2019

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