HB v PB

A local authority directed under Children Act 1989, section 37, to investigate whether public law proceedings should be issued may be ordered to pay a non-party’s costs. The jurisdiction under section 51 of the Senior Courts Act 1981 is discretionary. Exceptional circumstances describe the cases in which the power is justly exercised; they are not a statutory precondition. Improper conduct is not required. A local authority is sufficiently closely connected with private-law proceedings where a section 37 direction directly invites consideration of care or supervision proceedings. Extensive or systemic failures to investigate, comply with relevant guidance and prepare an adequate report may justify a costs order where they cause hearings to be wasted.

The father and mother were involved in private-law proceedings concerning their child. Following serious allegations of fabricated illness, the court directed the London Borough of Croydon to prepare a report under section 37 of the Children Act 1989. The report was substantially late and failed adequately to investigate or analyse the allegations. At a later hearing, the local authority accepted that further investigation was required, and the listed fact-finding hearing was abandoned and relisted.

The father sought his wasted costs from the local authority as a non-party. The issue was whether the court had jurisdiction to make such an order and, if so, whether the local authority’s failures made it just to exercise that jurisdiction.

1. The court had jurisdiction to order the local authority to pay the father’s costs under section 51 of the Senior Courts Act 1981, rule 28.1 of the Family Procedure Rules 2010 and the provisions imported by rule 28.2. The governing question was whether, in all the circumstances, it was just to exercise the power.
2. The description of a non-party costs order as exceptional did not create an additional statutory precondition. It identified the order as exceptional by comparison with the ordinary run of cases. A finding of improper conduct was likewise unnecessary. The court applied the reasoning in Globe Equities Ltd v Globe Legal Services Ltd [1999] BLR 232, following the approach in Symphony Group Plc v Hodgson [1993] 4 All ER 143 and Aiden Shipping Co Ltd v Interbulk Ltd [1986] 1 AC 965.
3. A local authority directed to prepare a section 37 report is closely connected with the litigation. The direction requires consideration of an application for a care or supervision order and may engage the court’s power to make an interim care order under section 38. That connection justified treating the local authority as an appropriate non-party payer.
4. The local authority’s failures were extensive and systemic. It failed fundamentally to investigate and analyse the allegations, failed to follow relevant national guidance, lacked appropriate training and supervision, and did not obtain timely legal advice. The deficient report caused the December fact-finding hearing to be abandoned, requiring a further directions hearing and causing financial and emotional costs.
5. The absence of a formal adjournment application at the beginning of the hearing did not defeat the claim. The deficiencies were exposed through the social worker’s and team leader’s evidence, which the father was entitled to test.
6. The costs of the wasted December hearings were summarily assessed at £10,311. The court’s factual findings on the allegations did not influence the costs decision.