Costs consequences

Cutbacks iStock 000013353612XSmall 146x219Stephen Jarmain examines the first reported decision in which a local authority has been ordered to pay costs in a private law case despite not being a party to proceedings.

Mr Justice Cobb last month handed down judgment on the question of costs in HB, PB, OB and the London Borough of Croydon [2013] EWHC 1956 (Fam). This is the first reported case in which costs have been awarded against a non-party local authority. The proceedings concerned cross-applications for residence in respect of a child aged nearly 6.

During the course of the proceedings a section 37 report was ordered, in light of concerns raised by the father about the mother’s conduct, in particular that she had (inter alia) falsely led the father and the paternal family to believe that the subject child was suffering from a number of serious medical conditions and that she (the mother) was suffering from cancer.

At the subsequent hearing of the case, it came to light during the course of the evidence that there had been multiple failings on the part of the local authority, including that the author of the report had not considered the relevant DCSF Guidance (the Supplementary Guidance to Working Together to Safeguard Children: Safeguarding Children in whom illness is fabricated or induced), the existence of the "Incredibly Caring Programme" used to train social workers in dealing with cases of fabricated illness, nor the pertinent guidance in Coventry City Council v X, Y and Z (Care Proceedings: Costs) [2011] 1 FLR 1045. Following the evidence of the report’s author and her Team Manager the local authority indicated a wish to hold an urgent legal planning meeting to consider the case.

The parties agreed that the hearing could not proceed and (given listing difficulties in the County Court) the case was transferred to the High Court for urgent directions before a further substantive hearing in March 2013.

The father sought his wasted costs from the local authority under the ambit of section 51(1) of the Senior Courts Act 1981.

Mr Justice Cobb considered submissions from the father and the local authority before making an order for costs against the local authority. Remarking that “the point of principle engaged is important”, His Lordship considered the limited authorities on non-party costs orders, in particular Symphony Group Plc v Hodgson [1993] 4 All ER 143, CA and more recently Globe Equities Ltd v Globe Legal Services Ltd [1999] BLR 232.

Whilst recognising the burden placed on both the human and financial resources of local authorities, Mr Justice Cobb found that the failings in this case had been “extensive” and had had a “profound effect on the conduct of the proceedings”.

Furthermore His Lordship considered that a local authority in a private law case in which a section 37 report had been ordered would be sufficiently “closely connected” to justify the order.

Since this is the first reported decision in which a local authority has been ordered to pay costs despite not being a party to proceedings it is anticipated that the judgment may well have significant implications for conduct of future cases in which local authorities are required to prepare reports.

Stephen Jarmain is a barrister at 1 Garden Court and can be contacted by This email address is being protected from spambots. You need JavaScript enabled to view it.. He appeared for the father in this case.