A (A Child), Re

A wasted costs order under the Senior Courts Act 1981 is compensatory, not punitive or regulatory. The applicant must establish that improper, unreasonable or negligent conduct by a legal representative caused the costs claimed. Pursuing a hopeless case does not, by itself, cross the statutory threshold. The court must distinguish poor judgment or excessive optimism from abuse of process, including knowingly failing to make full disclosure on a without-notice application or evading safeguards protecting the administration of justice. Serious procedural failures may justify criticism yet remain outside the jurisdiction where they caused no additional expenditure. In family appellate proceedings, duties of openness, candour, co-operation and proper expert instruction apply with necessary force.

The Local Authority sought a wasted costs order against the solicitors acting for parents in care and placement-for-adoption proceedings. The application followed the Court of Appeal’s refusal of permission to appeal, in [2012] EWCA Civ 1477, from HHJ Carr QC’s refusal on 18 June 2012 to reopen a 2010 fact-finding determination concerning a child’s fractures.

The alleged misconduct included inadequate disclosure at a without-notice hearing, delay in supplying material to the other parties, non-compliant instruction of a fresh medical expert, and continuing the permission application after receiving an adverse report. The central issue was whether those matters amounted to improper, unreasonable or negligent conduct causing wasted costs under section 51 of the Senior Courts Act 1981.

1. Application dismissed. The Court of Appeal refused to make a wasted costs order against the parents’ solicitors.
2. Under section 51(6) and (7) of the Senior Courts Act 1981, as explained in Ridehalgh v Horsefield [1994] 3 All ER 848, the jurisdiction requires conduct which is improper, unreasonable or negligent and which caused the costs claimed. The jurisdiction is compensatory rather than punitive or regulatory.
3. The solicitors should have provided the court with the core relevant material at the without-notice hearing, including the 2010 fact-finding judgment and relevant expert evidence. The requirements of openness, candour and disclosure apply in appellate family proceedings. The approach in Re McC (Care Proceedings: Fresh Evidence of Foreign Expert) [2012] EWCA Civ 165 extends the relevant requirements of the Family Procedure Rules 2010 and practice directions to that process.
4. The later failure to disclose the hearing note, expert instructions, Professor Nussey’s report and related material was a serious and gross failure. The expert should also have received the earlier judgment and essential expert reports. Those failings were professionally unacceptable, but caused no additional costs to the respondents.
5. The continued pursuit of permission after the adverse expert report was misconceived and untenable. However, it resulted principally from counsel’s over-optimistic judgment, rather than an improper or unreasonable act or omission by the solicitors.
6. The court declined to give comprehensive guidance beyond what was necessary for this fact-specific application. The Local Authority’s alternative claim for the costs of the wasted-costs hearing was also misconceived because the substantive application had failed.

• Court of Appeal (Civil Division): The application for a wasted costs order against the parents’ solicitors was dismissed.
• Court of Appeal (Civil Division): The application for permission to appeal was dismissed in [2012] EWCA Civ 1477.
• Sheffield District Registry: HHJ Carr QC refused on 18 June 2012 to reopen the 2010 fact-finding determination.