Tag Archives: costs

Costs of Experts in Care Proceedings – what happens when parents dispense with their lawyers?

 

The decision in J (A Child: Care Proceedings: Apportionment of Expert’s fees) [2017] EWFC B49 is mainly concerned with how to ensure the court gets help from expert witnesses now that their fees are subject to pretty stringent caps by the Legal Aid Agency (LAA -formerly Legal Services Commission or LSC)

I set out the discussion about hourly rates and apportionment of fees below; its pretty dry stuff but horribly necessary. It is clear that we live in a society now where a decision by the court that an expert’s opinion is ‘necessary’ is a decision that can be thwarted by a branch of the government that has set the level of acceptable rates for expert pay. It is possible to argue that your expert should be paid more but only in ‘exceptional circumstances’.

Matters were complicated here by both parents refusing to instruct lawyers and thus take advantage of the non means non merits tested public funding they would get.

If all the parties had lawyers the costs would probably be split 4 ways – in this case the court had to split them between the LA and the guardian. This does in fact reduce the burden on the LAA as it faces only 50% of the bill rather than 75% had costs been split four ways and the LA was the only party not with a legal aid certificate. So hopefully it won’t be a problem in this case. But what if it is? What if there are problems for the guardian on his publicly funded certificate? Best case scenario is further delay while arguments are had with LAA. Worst case scenario  is the court doesn’t get the evidence it needs and more experts are put off appearing in family courts over concerns they may not get paid for the work they do.

The discussion and clarification about issues of apportionment of expert fees are very relevant for lawyers, which is why I deal with it below. But the real worry for me about this case is WHY are the parents not accepting lawyers? I accept from some Twitter discussions about this, it could just be that they are distrustful of lawyers having had previous bad experiences.

But I worry – and have plenty of evidence to support my worry – that whispering in their ears will be the voices of those such as Hemming. That they have been told not to trust ‘legal aid losers’ and thus they will try and fight their corner alone. Their baby has a serious head injury and they are in the pool of perpetrators. One of the options before the court is adoption. To attempt to participate in these proceedings without a lawyer is sheer madness. But to end up paying money to some dodgy McKenzie Friends would make it a tragedy.

I remain shocked, sad and baffled that the activities of some self styled McKenzie friends appear to attract so little attention or concern in the wider world. I hope these parents do not come to regret the choice they made here.

For more details about my concerns about Hemming and his organisation JFF, see the posts set out here. 

Summary of the decision in Re J concerning experts’ fees

  • There is no ‘normal rule’ that costs are apportioned equally between all parties. The court retains discretion.
  • Hourly rates are matter for the LAA to determine but apportionment of fees a mater for the court – probably…
  • Guidance re applying for prior authority is inconsistent but to avoid delay it should be done quickly
  • The LAA should give reasons for its refusal

Fixed rates paid to experts when parties are legally aided.

1. Para 1 of Schedule 5 to the Civil Legal Aid (Remuneration) Regulations 2013 provides that subject to paragraph 2, the Lord Chancellor must pay remuneration to the provider for the expert service at the fixed fees or at rates not exceeding the rates set out in the Table. The Table that follows sets out a list of different categories of expert and the permitted maximum hourly rate for that expert.
2. It is possible to get paid more than these rates. This is set out at paragraph 2 of Schedule 5, if the circumstances are ‘exceptional’. This is defined as meaning the expert evidence must be ‘key’ to the client’s case AND either the material is so complex an expert with high level of seniority is required OR the material is so ‘specialised and unusual’ that only very few experts could deal with it.
3. If parties want to get their expert paid by the Lord Chancellor via the Legal Aid Agency, beyond the rates set in the Table because of exceptional circumstances, they have to apply to the LAA for ‘prior authority’ , i.e. permission to go over the fixed rates. If they don’t get this permission, the solicitors could end up with the bill as they have now a contractual relationship with the expert to pay for his or her services. They are not expected to take this risk and can’t be compelled to take it.
4. The application for prior authority is via a prescribed form. If refused there is no right of appeal. The solicitor can ask the LAA to reconsider but only challenge to refusal is by way of judicial review. The LAA suggest that they take 9 days to process an application but in reality it appears it will take much longer than that. This is potentially a cause for delay in Children Act cases.

Is equal apportionment of fees the ‘normal order’ where there is no issue over resources? ANSWER NO

5. This was the first question posed in Re J. With regard to the issue of apportioning fees the court examined the decision of the Court of Appeal in Re JG (A Child) [2014] EWCA Civ 656. The Lord Chancellor asserted it was the ‘normal’ rule that costs should be apportioned equally between the parties and any departure from this ‘normal’ rule that increases a burden on a publicly funded party should be confined to only ‘exceptional circumstances’. The court rejected the idea that such a ‘normal rule’ existed and said ‘it all depends on the particular circumstances of the case’ (para 16).
6. Instead the court looked to the decision in Calderdale MBC v S and the LSC [2005] 1 FLR 751. All parties were publicly funded except the LA. The parties jointly appointed an expert. The LSC persuaded the court to apportion 50% of the costs to the LA. On appeal Bodey J apportioned costs equally between all parties – so the LA paid 25%.
7. Bodey J was clear this was a matter for the court’s discretion. In the exercise of its discretion the court must consider all circumstances but in particular:
a. The adequacy of the work done by the LA itself
b. Where the report is directed at threshold or welfare issues
c. The need for each party to have confidence in the integrity of the forensic process.
8. The court in Re J considered two other authorities and concluded it was clear that the court has discretion as to what order is made as to the costs of instructing experts in family proceedings.

The Family Procedure Rules 2010

9. The impact of Rule 25.12(6) FPR mirrors Rule 35.9(5) CPR and provides:
Unless the court directs otherwise, the relevant parties are jointly and severally liable for the payment of the expert’s fees and expenses
10. The court conceded this is an odd provision as it appears to be concerning itself with the contractual relationship between the parties and the expert. However, the court decided that when reading it alongside Rule 2512(4)(a) – the court may give directions about experts fees and expenses – it is not intended to be prescriptive and simply establishes a ‘default’ position in the absence of any other court directions. This does not however set up a ‘normal rule’ that costs are to be apportioned equally.

What happens when one party has no money?

11. In re J neither parent was able to pay anything as they had very limited means and they had refused to instruct lawyers even though they would have attracted non means and non merits tested legal aid. If the parents had been legally aided the court had no doubt it would have ordered the expert fees to be shared equally between all parties. Black LJ in re JG was very clear that ‘equality is not the norm’ and the impecuniosity of a party may justify the unequal apportionment of an expert’s fees between the parties’.
12. The court therefore concluded at para 18 of the judgment that it had to accept this was a case ‘in which fairness and common sense dictate that an order requiring an equal sharing of the experts’ fees is wholly inappropriate’. The fees should be paid equally by the guardian and the LA.
13. However, the court still needed to consider the Guidance published by the LAA, which was updated in September 2014. Para 1.6 of the Guidance headed ‘Joint instructions and apportionment generally’ advises that it is normal practice for an application to be made for prior authority wherever a party’s legal representative or the expert are unwilling to take a risk as to assessment of expert fees’
14. There is also Guidance published in 2013 on Remuneration of Expert Witnesses which was updated in April 2015. Section 4 of that guidance appears to contradict para 1.6 of the 2014 guidance as it makes application for prior authority mandatory – ‘you MUST always apply for prior authority where you seek to incur costs of an expert service at higher rates than those set out in the Remuneration Regulations…’
15. Para 4.5 of the 2013 Guidance also recognises that unequal apportionment of costs will not always be unusual in care proceedings – for e.g. one party may be an intervenor and it wouldn’t be appropriate for them to bear an equal share of an expert report going to an issue which is not relevant to their intervention.

So what happened in Re J about splitting costs between LA and Guardian?

16. The court approved the instruction of two experts and determined their fees should be split 50/50 between the LA and the Guardian. The court asked – why is prior authority needed before a letter of instruction can be sent? And if an application is made for prior authority for an unequal apportionment of an expert’s fees ordered by the court, is it open to the LAA to refuse that application?
17. Sir Nicholas Wall P in A local authority v S and others [2012] EWHC 1442 (Fam) was clear that the LSC has power conferred on it by Parliament to refuse to fund an instruction or fund in part only. The only remedy is by judicial review. BUT that was a case dealing with the hourly rate paid to experts. How payment of that hourly rate is to be shared between the parties is NOT subject to any regulations. ‘The issue of apportionment is at large’ (para 24).
18. The court was doubtful that the LAA could interfere with the decision of the court about apportionment, but this was a question for another court on another day. However, the guardian’s solicitor thought it prudent to apply for prior authority in any event and court agreed this was sensible.

The hourly rates of the expert in Re J

19. The excess requested by the expert was £432. Dividing this between the LA and the guardian means that the guardian would have to pay £216 more than could be claimed by the LAA. Even if the guardian was only paying 25% that represents £108 more than could be claimed back. The court agreed that the guardian must seek prior authority to instruct the expert at an hourly rate in excess of the standard rates.
20. The application for prior authority should be made without delay and the LAA, if it refused the application should give reasons for its decision as fairness dictates that the parties are able to understand why it has refused to allow what the court has considered necessary – and if appropriate, challenge can be made speedily.

Human Rights Act claims – where are we now?

23rd March 2017
BRISTOL CJC CPD SEMINARS
Section 20 and HRA claims in light of Hackney, Kirklees, Northamptonshire AND SW & TW

Sarah Phillimore St Johns Chambers www.childprotectionresource.online
If you found this presentation helpful, please consider making a donation to http://www.designability.org.uk

SUMMARY

The situation has been clarified with regard to the procedural requirements of any HRA application and we are getting more illumination about the appropriate level of damages. But fundamentally we have a situation where the law provides outcomes which are arguably unjust. This will mean case law may continue to contort as judges continue to try find a way around.

Breach of duty /Damages re section 20 misuse
The Hackney case provoked significant comment from both lawyers and social workers on line I don’t agree that it marks ‘the end of damages for section 20 claims’ but it is an important case:
• use of word ‘object’
• continued relevance of good practice directions
• comment on quantum of damages for HRA breach

The beginning of the end for viable HRA claims for the publicly funded (or even anyone)?
• Hackney is critical of level of damages
• Kirklees sounds the alarm re issue of costs/statutory charge
• SW & TW set out strict procedural requirements to make HRA application.

IMPORTANT EDIT RE THE STATUTORY CHARGE AND DAMAGES

Northamptonshire County Council & Anor v The Lord Chancellor (via the Legal Aid Agency) [2018], considers important new Guidance from the Legal Aid Agency. It confirms that it will no longer apply the statutory charge from care proceedings to Human Rights Act 1998 damages.

See this article by Will Tyler QC and Ben Mansfield in Family Law Week for further discussion.

Provided this guidance is followed then the LAA will not seek to recoup damages.  Parties must:

  • attempt resolution of the claim without issuing HRA proceedings. This may include seeking agreement from the Local Authority to pay the claimant’s reasonable costs of a Part 8 CPR infant approval hearing in the event settlement is reached, to be heard by the care proceedings judge, see H (A Minor).
  • If its necessary to go to court practitioners must:
    • seek a separate legal aid certificate for the HRA damages claim; and
    • issue separate HRA claim forms pursuant to s.7(1)(a), HRA, in accordance with Part 8 of the Civil Procedure Rules, to be listed and determined alongside the care proceedings.
    • seek early confirmation from the LAA that the care proceedings statutory charge will not apply to the prospective HRA award.
    • confirm that they will not and have not claimed HRA costs under the legal aid certificate covering the care proceedings.

London Borough of Hackney v Williams & Anor [2017] EWCA Civ 26 (26 January 2017).

1) 8 children went into foster care for a few months after police intervention. The Williams’ initially signed a section 20 agreement . It is possible that their full legal rights, including this right of immediate removal, were not fully explained at the time. However, the parents quickly obtained legal advice and said they would consent to section 20 accommodation for a short time. The LA agreed that the children should go home but noted the bail conditions were still in place that prevented the parents from offering their children accommodation. The Williams knew they had the right to apply at any time to vary these bail conditions, but did not do so. Once the bail conditions were varied, the children returned home a few days later.

2) There were no criticisms of the initial police actions to remove the children for 72 hours. However, the subsequent action of the LA to accommodate the children saw the following 9 years spent in litigation as the Williams’ pursued various legal claims that their children had been wrongly removed.

Why did the Court of Appeal overturn the first instance decision?
3) In 2015 the first instance court held that the LA were liable to pay damages of £10,000 to each parent for breach of statutory duty and consequent interference with the parents’ Article 8 rights. The LA appealed and won.

4) The parents had argued that their consent to section 20 accommodation had been unfairly obtained and was not thus ‘true consent’. The Court of Appeal examined this claim from para 43 of their judgment, by looking at the guidance provided in both Coventry City Council v C [2013] EWHC 2190 (Fam) per Hedley J. and by Munby J in the earlier case of R (G) v Nottingham City Council and Nottingham University Hospitals NHS Trust [2008] EWHC 400 (Admin)

5) However, as the Court of Appeal note at para 48 – good practice guidance does not have the force of law. Further, the circumstances of the Williams were markedly different to those of the mothers in the cited cases; in particular the fact that the bail conditions imposed by the police, over which the local authority had no control, prevented the children from living with them.

6) The Court of Appeal then considered the case law that had arisen since the decision in the Coventry case: Re B (Looked after child) [2013] EWCA Civ 964 (sub nom Redcar and Cleveland Borough Council v Others); Re W (Children) [2014] EWCA Civ 1065; and Re N (Adoption: Jurisdiction) [2015] EWCA 1112.

7) These cases all touched upon the issue of active objection or passive consent to section 20 accommodation. The Court of Appeal noted the President’s firm words in Re N ‘

The misuse and abuse of section 20 in this context is not just a matter of bad practice. It is wrong; it is a denial of the fundamental rights of both the parent and the child; it will no longer be tolerated; and it must stop. Judges will and must be alert to the problem and pro-active in putting an end to it. From now on, local authorities which use section 20 as a prelude to care proceedings for lengthy periods or which fail to follow the good practice I have identified, can expect to be subjected to probing questioning by the court. If the answers are not satisfactory, the local authority can expect stringent criticism and possible exposure to successful claims for damages.

8) The Court of Appeal commented that as the ‘good practice guidance’ was set out AFTER the Williams’s children went into foster care, they would need to examine the actual law. The key consideration was section 20(7) which sets out that a LA may NOT provide accommodation for any child if any person who has PR is willing and able to accommodate him and OBJECTS.

9) The Court of Appeal commented at para 68:

The word ‘consent’ does not appear within s. 20. There is no express statutory requirement upon a local authority to obtain a positive expression of consent from a parent before accommodating a child under the various provisions in s. 20(1), (3), (4) and (5), let alone any requirement for such consent to be in writing and subject to any of the various refinements that have been described in the case-law to which I have referred. Nothing that is said in this judgment is intended in any manner to detract from or alter the terms of the good practice guidance that has been given, principally by Sir James Munby P and Hedley J, in these cases; the obvious wisdom and good sense of their words are plain to see. The present case is, however, a claim for damages pursuant to s. 8 of the Human Rights Act 1998, in relation to breach of statutory duty under s. 20 of the 1989 Act and breach of rights under Article 8 of the ECHR. Insofar as breach of statutory duty under s. 20 is concerned it is necessary, in my view, for a claimant to go further than establishing that the actions of the local authority fell short of what, subsequently identified, ‘good practice’ might require; the authority must be seen to have acted in breach of the terms of the statute.

10) The Williams could not have offered accommodation. The statutory test was not whether they offered consent to section 20 accommodation, but whether they actively objected to it. They would only have been able to do that if they had applied to vary the bail conditions, over which the LA had no control. Therefore the Court of Appeal did not agree that there was a breach of statutory duty here and thus no damages should be paid.

11) The Court of Appeal made brief comment about the level of damages awarded at para 87 of their judgment. Having decided that no damages should be paid, they did not need to determine quantum but expressed the very clear view that £10,000 was too high in any event.

ANALYSIS

12) This case involved parents who could not offer a home to their children so long as the police bail conditions remained in place. The local authority did not impose these conditions and were not responsible for varying them – although there was some argument as to what information the local authority passed to the police. The parents may not have ‘consented’ to what happened to their children but even if they had made active objection, they could not have taken their children home unless and until the bail conditions were varied.

13) In such a situation I agree with the Court of Appeal that it is plainly wrong to hold the local authority to blame for a breach of its statutory duty. However, these are quite distinct and particular facts which acted to deprive the parents of the reality of any ability to object.

14) Sadly I am sure there are bound to be further cases where misuse of section 20 involves vulnerable parents, who did not understand or did not have explained to them what section 20 means. Those kind of cases are often coupled with a ‘drift’ for the child in foster care of many months before care proceedings are issued. In such circumstances there is likely to be a reasonable argument for a disproportionate and hence unlawful breach of Article 8. The existence of ‘good practice’ guidance about such issues of course does not have the force of law but can provide a useful benchmark against which to measure if the local authority have acted proportionally.

15) However, considering the impact of the statutory charge, the brief dismissal of £10,000 as an appropriate level of damages sounds an interesting warning for future cases which may well go to render HRA claims pretty hopeless in practice. European jurisprudence is clear that damages for human rights breaches are awarded to provide ‘just satisfaction’, not punishment for the wrongdoer. Therefore levels of damages are likely to be low.

Kirklees Council CZ (Human Rights Claim: Costs) [2017] EWFC 11 (16 February 2017)

16) A clear example of an unlawful breach of Articles 8 and 6 of the ECHR – the parents’ child was removed from their care as a new born baby and lived with grandparents for a few weeks. This was done without telling the parents what the plan was and repeatedly misleading the court about whether or not the parents did know and did agree.

17) Cobb J realised that the amount of damages – £3,750 to each parent and child – will inevitably be swallowed up by the statutory charge.

18) The costs in the case before Cobb are set out at para 46 of the judgment. They are horrifying. The ‘grand total’ is around £120K. This is all public money. The parents argued hard for the LA to pay their costs, realising the impact of the statutory charge. However, Cobb J refused; the LA it seems had made sensible and timely efforts to settle this case, realising that their conduct could not be defended.

19) His reasons are set out very clearly at para 58:
• The court’s wide discretion cannot be condensed to one option only (i.e. to make a substantive award of costs) simply in order to achieve a ‘just’ outcome’
• If it had been the intention of Parliament that damages awarded under the HRA 1998 would be exempt from the statutory charge, it would have provided for this in the revised Statutory Charge Regulations (2013); it did not
• the Claimants could not be insulated against the eventuality that the shortfall in any assessment would in itself lead to the obliteration of a modest award of damages;
• The award of non-pecuniary damages under section 8(3) is intended to reflect the Court’s disapproval of infringement of the claimants’ rights, in providing “just satisfaction” to the claimant; it is not intended to be, of itself, a costs award.
• Parliament has devised a legitimate mechanism for the recovery of the costs incurred from those who benefit from state-funded support to pursue their litigation, and however unfairly it may operate in an individual case, it must be respected;
• The court cannot disregard the parties’ litigation conduct in evaluating costs; the Claimants did not conscientiously attempt to settle their claims but the LA did The impact of the Northamptonshire case.

H (A Minor) v Northamptonshire County Council & Anor [2017] EWHC 282 (Fam) (17 February 2017).

20) This case involved an 8 year old boy ‘H’ who was placed in long term foster care with contact to his father. The LA had failed to issue care proceedings until 2016, despite clear and obvious concerns about the care H was receiving from about 2012, and had wrongly restricted H’s contact with his father. H’s solicitors issued a HRA claim and the LAA granted a separate public funding certificate, Keehan J having stated that this application should be made separately but determined alongside the care proceedings.

21) H’s solicitors sought clarification from the LAA as to the impact of the statutory charge upon such a ‘free standing’ HRA application. The LAA replied to say that ‘subject to the extent of the connection between the Human Rights action and the initial Care proceedings any Damages recovered as a consequence of the Human Rights proceedings will be subject to the Statutory Charge and it is possible that the liability will extend to the costs arising from the Care proceeding. The consideration of the connection is made once the settlement is reached, and would depend on the facts of the case’.

22) The LA then made an open offer to settle H’s HRA claim for £18,000. The court decided that it was not possible to agree the amount of damages unless first knowing what the LAA were going to do about the statutory charge; if the costs of the care proceedings were included, the statutory charge would consume the entirely of the agreed damages. The LAA were thus invited to intervene in the proceedings. They initially stated that they would apply the statutory charge. However, their eventual position ‘at the 11th hour’ was that they would NOT apply the costs of the care proceedings to the statutory charge.

23) Because the LAA had taken so long to confirm its position, the LA agreed to pay H’s costs only up until the date the LAA were invited to intervene. All costs incurred thereafter should be met by the Lord Chancellor’s Department. It was argued that the provisions of s.51 SCA and CPR r.46.2 clearly provide the court with the power to make a costs order against a third party and the behaviour of the LAA justified the making of such an order. Keenhan J agreed he had the power to make such an order and he would do so. He confirmed that £21,500 was the appropriate sum of damages to be awarded to H.

24) Keehan J made it clear that he understood and deprecated the impact of the statutory charge, commenting at paras 120 and 121 of his judgment. NB SEE EDIT ABOVE AND THE NEW GUIDANCE FROM THE LAA. 

The issue I raise, in the context of HRA claims brought by children, and by parents, during the currency of pending care proceedings, is whether it is just, equitable or reasonable that damages awarded to a child, or to a parent, as a result of breaches of his/her Convention Rights by one organ of the State should be recouped by another organ of the State in respect of public law proceedings which would otherwise not be recoverable. Public funding in such cases is non means tested and non merits based. Furthermore, save in exceptional circumstances, the local authority issuing the care proceedings is not liable to pay the costs of any other party: Re T [2012] UKSC 36.
I very much doubt that such a recoupment is just, equitable or reasonable. In the vast majority of cases the effect of the recoupment of the child’s or parent’s costs of the care proceedings will be to wipe out the entirety of the HRA damages awarded. In this event, the child or the parent will not receive a penny.

 

General guidance offered by Keehan J

25) He discussed the judgment of Munby J (as he then was) in Re L (Care Proceedings: Human Rights Claims) [2003] EWHC 665 (Fam), [2003] 2 FLR 160 which was expressly approved by and received the “whole-hearted endorsement” of the Court of Appeal in Re V (Care Proceedings: Human Rights Claims) [2004] 1 FLR 944, per Wall LJ at para 98. Re L drew an important distinction between those cases where HRA issues arise when care proceedings are on-going and where care proceedings have come to an end. In the latter case, the appropriate remedy may well be a free-standing application under section 7(1)(a) of the 1998 Act. However, if care proceedings are on-going, the President was very clear that HRA claims should be dealt with within the context of the care proceedings and by the court which is dealing with the care proceedings.

26) Keehan J was clear that the present case was an example of when it was permissible to issue a separate application for a HRA and that it was likely to be a tactical necessity if damages were sought, saying at para 115

…the decision in Re L, and the decision in Re V, may be distinguished from proceedings in which a HRA claim is pursued and damages are sought. Therefore, where the remedy sought in the HRA claim is not limited to injunctive or declaratory relief but includes a claim for damages, it is almost inevitable that those representing the Claimant will be well advised to issue separate proceedings and to seek the issue of a separate public funding certificate because of the potential applicability of the statutory charge in respect of any HRA damages awarded.

 

SW & TW (Human Right Claim: Procedure) (No1) [2017] EWHC 450 (FAM)

27) Another judgment of Cobb J, this sets out the ‘essential procedural points’ for making at HRA claim. See paragraph 3. Applications for ‘substantive relief’ should be issued as civil proceedings by way of a Part 8 CPR 1998 claim even if within existing CA proceedings.

28) Key points
a) claims for substantive relief such as declarations and/or damages should be issued formally, (NOT by introducing it in a skeleton argument!)even if made within existing proceedings; if the party is seeking to “rely on the Convention right or rights” (section 7(1)(b)) within the CA 1989 proceedings to influence the manner in which the family court exercises its powers, a lesser degree of formality contemplated by rule 29.5 may well be appropriate
b) A child claimant in HRA 1998 proceedings requires a litigation friend appointed under Part 21 of the CPR 2010; the appointment of a guardian or litigation friend for this type of claim is not effected under rule 16 FPR 2010. Cafcass cannot authorise its officers to act as litigation friends to children claimants, having regard to its functions, which are set out inter alia in section 12 of the Criminal Justice and Court Services Act 2000 (CJCSA 2000) moreover, Cafcass does not, as a matter of policy, support Children’s Guardians acting as litigation friends in HRA 1998 proceedings;
c) It is therefore not appropriate for a Children’s Guardian who has been appointed in specified CA 1989 proceedings to act as an informal litigation friend, or ‘front’ the claim as if he/she is a litigation friend, in a related HRA 1998 claim. The status of litigation friend can only be bestowed following one of two recognised formal processes – either the filing of a certificate of suitability under Part 21.4(3)/Part 21.5(3) or pursuant to court order (Part 21.6);
d) Given that the CPR 1998 applies to these claims, the regime of Part 36 CPR 1998 (‘Offers to Settle’) applies to them;
e) The full costs regime in Part 44 CPR 1998 also applies, including (in contrast to the position in family proceedings) the general rule that ‘costs follow the event’ in HRA 1998 claims (CPR, Part 44.2(2)(a): “(a) the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party”; see also CZ v Kirklees MBC [2017] EWFC 11 at [61]));
f) the publicly funded claimant in a HRA 1998 claim who is also publicly funded in associated (or ‘connected’: section 25 Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO 2012)) proceedings, is vulnerable to a claim for recoupment of the costs of both sets of proceedings by way of statutory charge from any award of HRA 1998 damages;
g) In HRA 1998 proceedings, the Legal Aid Agency may issue a publicly funded certificate for a claimant to pursue declarations only, and not damages, as it did in this case, for the father; if this is so, this may have implications for (a) entitlement to any public funded remuneration for the lawyers for the work done on seeking a damages award, (b) the extent to which the successful claimant can recover any costs referable to pursuit of the claim for damages from the Local Authority if they have not been authorised to expend costs in pursuit of the same, and/or (c) the ability of the LAA to recoup funds from the damages (applying the statutory charge) for work done in respect of which there was no public funding certificate;
h) PLEASE think hard about settling! This case illustrates once again that the cost of pursuing relief under the HRA 1998 can very swiftly dwarf, or indeed obliterate, the financial benefits sought. Many such cases are surely suitable for non-court dispute resolution (NCDR) ….Parties in cases of this kind would do well to remind themselves of the comments of the Court of Appeal in Anufrijeva v LB Southwark & others [2003] EWCA Civ 1406 [2004] 1 FLR 8 at paras 79-80:

Can anything be done to avoid the statutory charge?

NOTE EDIT ABOVE AND NEW GUIDANCE FROM THE LAA

29) Free standing applications (BUT note implications of increased procedural formality)
30) Costs orders – but bear in mind litigation conduct
31) Section 17 of the Children Act 1989 section 17(7) allows cash payments.
32) General wellbeing provision of the Local Government Act 2000 – section 2(4) allows the LA to give financial assistance to any person
33) Complaint pursuant to section 26 of the Children Act 1989

Damages awarded in other cases – RANGE approximately £3k-£70K

34) P, C, S v the UK [2002] the European court awarded each parent €12,000 for breaches of their Article 8 and 6 rights in a case which involved removal of a baby at birth. This case also has some useful commentary as to how damages should be assessed.
35) Northamptonshire CC v AS [2015] – damages £16K.
36) Ferrari v Romania in the European Court of Human Rights in April 2015 where a father was awarded €7,500 after the state failed to properly engage with Hague Convention proceedings and caused delay.
37) In re A (A Child) in August 2015, the mother was awarded £3,000 for unlawful removal of her child.
38) Medway Council v M and T October [2015] awarded £20K to both mother and child for unlawful use of section 20 accommodation under Children Act 1989.
39) B (A Child) [2016] EWFC B10 January 2016 – £5K awarded for 3 year delay in revoking placement order that meant B lost out on developing a relationship with his siblings.
40) Case Soares de Melo c. Portugal (Application No 72850/14) [Feb 2016] award of €15,000 for decision to have children adopted without offering family sufficient support.
41) X, Y & Z re (Damages: Inordinate Delay in Issuing Proceedings) [2016] EWFC B44 (23 February 2016) – £65K awarded, highest level of damages known to date for misuse of section 20, and particular criticism of the failure of two IROs to act.
42) BB (A Child) [2016] 27th June EWFC B53 £7,500 awarded for misuse of section 20.
43) GD & BD (Children) [2016] 10-18 October 2016 EWCH 3312 – example of very poor police, LA and legal practice. £10,000 awarded to the mother and £5,000 to each child.
44) London Borough of Hackney v Williams and Anor [2017] – Court of Appeal sound the warning that £10K awarded at first instance was too high (in the event the court did not find a breach of statutory duty so no damages were awarded at all)
45) CZ (Human Rights Claim: Costs) [2017] EWFC 11 – £3,750 to each parent and child for unjustified removal at birth for about 3 weeks. However, costs likely to be completely absorbed by the statutory charge – publicly funded costs in region of £100K.