The party responsible for the appointment of a special advocate in a family law case should have to bear its costs, the High Court has ruled, as it also declined to cap or manage the costs incurred.
Mr Justice Cobb described R (Closed Material Procedure: Special Advocates: Funding)  EWHC 1793 (Fam) as being “unusually sensitive”.
“It is sufficient for me to record that shortly after R’s birth, the parents separated; there followed lengthy and bitterly contested private law proceedings. When those were at an advanced stage, the father was the victim of a serious and life-endangering attack, which he survived. This led to the trial, and convictions, of a number of people for the offence of conspiracy to murder…
“The police have assessed, on information supplied, that there is a second, and continuing, conspiracy to murder the father; that information has been shared with the parties to these proceedings. The police, however, resist disclosure of a small quantity of information relevant to that continuing conspiracy, arguing that disclosure of the information would materially heighten the risk to the father, to R, and to others, and would unhelpfully expose police operational details.”
Where such sensitive material is placed before the court, and has to be examined and/or tested on behalf of the parties to whom it cannot be disclosed, the court may invite the Attorney General to appoint a special advocate, a security cleared lawyer, to represent their interests. They are appointed through the Special Advocates’ Support Office (SASO), which is part of the Government Legal Department.
The mother has had a special advocate at three closed material hearings, while Mrs Justice Pauffley directed a few months ago that the father should have one for future hearings. The question before the court was who should be pay for the father’s special advocate – the police had agreed to fund the mother’s “out of pragmatism, rather than any sense of legal obligation”, the court heard.
At the time of last month’s hearing, the SASO and special advocate on behalf of the mother had generated £53,000 in professional fees since July 2016. For the father, they had generated a little under £4,000 since March 2017.
Cobb J said there has been “no clear or definitive ruling” on the issue. He continued: “I am satisfied that the Attorney General’s Office does not have a dedicated budget for the provision of special advocates in family cases; the President’s Guidance is clear that it should not be expected to fund a special advocate in these circumstances as “this is not a service which the Attorney General will normally cover”. I am equally satisfied that the Legal Aid Agency cannot be challenged on its conclusion that there is no statutory duty in LASPO 2012 to fund the special advocate for the father.”
He concluded that it should be the agency which held the sensitive material, namely the police, to fund the special advocate for the father: “The police have exclusive ownership of the sensitive material. The police wish to ensure that (a) the court is in possession of that material and that (b) the court is aware of the reasons why disclosure of that material would be contrary to the public interest; it proposes that the sensitive information is therefore presented to the court exclusively in closed session, and that its disclosure to the parties should be closely and rigorously controlled.
“In my judgment, the police, having taken this position (which I emphasise has been approved as reasonable and appropriate thus far), should be required to broaden its obligations to ensure that those who are most affected by the information are given the fullest and fairest opportunity to have the case for non-disclosure tested.”
Cobb J then looked at whether he should cap the costs in light of the police’s disquiet about the scale of the costs of the mother’s special advocate and fear of the father’s costing a similar amount. He said this seemed “particularly apposite in a case where (a) by my judgment, the costs of the special advocate for the father are to be paid by a non-party agency, (b) there is no assessment process at the conclusion of the case, as the authorisation for costs is prospective and the fee-rates are fixed, and (c) the costs of the special advocate for the mother are already significant”.
But Cobb J concluded: “I have been persuaded that I should not impose such a cap or other costs management direction in this case. I accept the argument of the SASO that a special advocate should be enabled to exercise reasonable autonomy in the way in which he/she undertakes his/her work…
“Furthermore, the special advocate appointed to represent the interests of the mother in this case appears to have had reasonably free rein to investigate matters in open and closed session; there is a potential for unfairness, certainly a perception of unfairness, if the father’s special advocate and the SASO team working on his behalf were to be circumscribed significantly by the court in the work they could undertake.
“While the court has an obligation to save expense, it does of course have an equally significant responsibility to ensure that the parties are on an ‘equal footing’.
“That said, I encourage the SASO and the special advocate for the father to adopt a reasonable and proportionate approach to its task; my assessment is that the issues arising with the closed material procedure now are not as significant as they perhaps were when the special advocate was appointed to protect the interests of the mother, and I would expect that the amount of work, and corresponding costs, should therefore reflect this.”