Father wins court declaration but is ordered to pay costs

A father who won a declaration that a local authority acted unlawfully in allowing his children to be known by the surnames of their prospective adopters in advance of the making of adoption orders has been denied costs and instead been ordered to pay costs himself.

In Re R and E (children) (Costs) [2017] EWFC B23, HHJ Meston QC, the designated family judge in Bournemouth, decided that a declaration was sufficient and that an award of damages was not justified.

The father sought £5,000 in costs against the local authority, while the local authority applied for costs of £4,035 based on the father’s rejection of a £1,500 part 36 offer in December 2016. The proceedings ended on 27 January 2017.

The governing principles of claims like this were set out in two recent decisions of Cobb J, who held that human rights claims connected to public law cases concerning children were governed by the Civil Procedure Rules, not the Family Procedure Rules, meaning that parts 36 and 44 applied and the judge has to keep “a careful and realistic eye” on proportionality.

HHJ Meston said the father achieved “no more than partial success in his claims”. He brought claims on behalf of both himself and the children but, after he did not appoint a litigation friend for the children, their claim was dismissed.

Though he was successful in obtaining a declaration, “it is a declaration of limited value to himself and of negligible value to the children”. Further, he was wholly unsuccessful in his monetary claims for damages.

“Most importantly, the wish expressed by the children to be known by the surname of the prospective adopters was largely brought about by the father’s own actions.”

There was a delay by the local authority in providing its witness statements and disclosure, but the judge said in the circumstances this did not require a costs sanction.

HHJ Meston said: “On an overall view of the proceedings applying CPR rule 44 factors – and before considering the consequences of the part 36 offer – I would not order the recovery of any costs by the father despite his success in obtaining a declaration. In any event, any costs order in his favour would be subject to the cap under CPR rule 46.5.”

The conduct factors weighing against the father were that he made unrealistic claims for damages; he sought to add an application for the adoption orders to be set aside, “an untenable application without any prospect of success”; the proceedings “appear to have become part of a determined campaign by the father against the local authority”; he sought “inappropriate” witness summonses against a series of people, which took court time to set aside; and he did not use any internal complaints procedure.

On this basis, he would have made no order for costs. The judge went on to consider the effect of the part 36 offer.

“It appears that the father rejected the part 36 offer because he wanted to pursue his claims for substantially higher sums and because also he wanted to use the two days in court that had been listed for the hearing of his claim.

“Although doubtless the father now feels vindicated by the declaration made by the court, his approach to the case and his hostile attitude to the local authority suggest that he would not have been satisfied even if the part 36 offer of £1,500 had been accompanied by an offer of an apology by the local authority.”

However, because the father did obtain a declaration, HHJ Meston said it would be “unjust” to order the full amount claimed by the local authority, instead awarding it 75% of its costs.

“As the claimant father is without means, the order will provide that it is not to be enforced without leave of the court.”

 

This post was posted in ACL e-Bulletin, Latest News

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Costs News
Published date
24 May 2017

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