W (A Child) v Portsmouth Hospital NHS

Under the statutory cost-protection scheme, an appellate court may make a costs order against publicly funded litigants where, assuming no cost protection, it would have ordered costs. In unusual proceedings brought by a public body concerning a child’s medical treatment, the ordinary reluctance to order costs in private-law disputes between parents does not govern. Reprehensible or exceptional conduct is not required. An appeal may be finally determined for costs even while related first-instance proceedings continue. The costs judge, not the appellate court, decides any liability of the Legal Services Commission. Where no personal liability is sought and the funded clients are impecunious, the order may specify that they pay nothing.

The Trust brought proceedings in the Family Division concerning declarations governing the treatment of W, a gravely ill child. Hedley J made declarations in October 2004 and on 21 April 2005 refused to discharge them, continuing them without limit of time. The parents sought permission to appeal on the best-interests issue and appealed on the timing issue. On 25 August 2005, the Court of Appeal dismissed the permission application and the substantive appeal, while expediting a review of the declarations: [2005] EWCA Civ 1181, [2005] 1 WLR 3995.

The Trust then sought a stage-one costs order under section 11(1) of the Access to Justice Act 1999, to enable a later application to the Legal Services Commission. The central issues were whether the appeal proceedings had been finally determined, whether CPR 44.3 prevented an order, and what amount should be specified.

1. Costs order made. The court made a costs order against the parents under section 11(1) of the Access to Justice Act 1999 in respect of the unsuccessful permission application and appeal. Under regulation 9(2) of the Community Legal Service (Costs) Regulations 2000, the amount payable by the parents was specified as nil. Any application for payment by the Legal Services Commission was referred to a costs judge.
2. Two-stage scheme. Following R (on the application of Gunn) v Secretary of State for the Home Department, [2001] EWCA Civ 891, [2001] 1 WLR 1634, the appellate court’s function was stage one: to decide whether, but for cost protection, it would have ordered costs and whether it would have specified an amount. The costs judge performs the stage-two functions, including determining the amount payable and whether it is just and equitable for the Commission to pay. The appellate court must not usurp that jurisdiction.
3. Final determination. The appeal proceedings had been finally determined in favour of the Trust when the Court of Appeal dismissed them, notwithstanding later review and reinstatement of the declarations at first instance. The court followed Masterman-Lister v Brutton & Co (Nos 1 and 2), [2003] EWCA Civ 70, [2003] 1 WLR 1511. A possible petition to the House of Lords did not prevent the stage-one order; its effect was a matter for the costs judge.
4. Costs discretion. CPR 44.3 applied to the initial question whether a costs order would have been made. CPR 44.17 excluded Part 44 only from the assessment of costs where the statutory scheme made different provision. The court rejected the submission that costs could be ordered only for reprehensible or wholly unreasonable conduct, or only in exceptional circumstances.
5. Context and amount. The ordinary principles applicable to private-law proceedings between parents, reaffirmed in Re T (Order for Costs), [2005] EWCA Civ 311, [2005] 2 FLR 681, did not govern these highly unusual proceedings brought by a public body under the inherent jurisdiction. The parents’ unsuccessful challenges, viewed against the careful first-instance decision and the circumstances of the appeal, justified the hypothetical costs order. As no summary assessment had been sought, the court could not specify a hypothetical amount, but it had sufficient information to specify nil under regulation 9(2)(a).

1. Court of Appeal (Civil Division). On 3 May 2006, the court made a stage-one costs order against the parents, specified that they were to pay nothing, and provided for assessment of the Trust’s recoverable costs from the Legal Services Commission by a costs judge.
2. Court of Appeal (Civil Division). On 25 August 2005, the court dismissed the application for permission to appeal on the best-interests issue and dismissed the appeal on the timing issue. Its reasons were handed down on 12 October 2005 in [2005] EWCA Civ 1181, [2005] 1 WLR 3995.
3. High Court, Family Division. Hedley J made treatment declarations on 8 October 2004 and on 21 April 2005 refused to discharge them, continuing them without limit of time. Following the expedited review, the declarations were discharged on 21 October 2005, [2005] EWHC 2293 (Fam), and authority was reinstated on 23 February 2006 after W’s condition deteriorated.