A and S (Children) v Lancashire County Council

Costs in family proceedings are governed by the discretion to make an order that is just. There is no general rule that costs follow the event. The court may consider both litigation conduct and the conduct that gave rise to the proceedings. A costs order may be justified where a party’s conduct has been reprehensible or outside the band of reasonableness; bad faith or flagrant misconduct is not an essential condition. An order on the standard basis may be made even where the party cooperated during the litigation. Indemnity costs require conduct sufficiently unreasonable to justify the additional penalty or stigma associated with that basis.

A and S had been subject to freeing orders in favour of Lancashire County Council. The orders were later discharged, and declarations were made under section 7(1)(b) of the Human Rights Act 1998 concerning breaches of the children’s Convention rights. The present application concerned liability for the costs of the proceedings in the Family Division, including the costs argument.

The parties disputed whether the Civil Procedure Rules 1998 or the Family Procedure Rules 2010 governed costs, whether conduct before the litigation could be considered, and whether standard or indemnity costs were appropriate.

1. Applicable regime. These were family proceedings and the Family Procedure Rules 2010 applied. Under FPR 28.1 the court had to make such order as was just. There was no general rule that costs followed the event, although the court had to consider the relevant circumstances and conduct provisions applied through FPR 28.2.
2. Relevant conduct. The court rejected the submission that only litigation conduct could be considered. Conduct which caused or gave rise to the proceedings was relevant. Otherwise, a party could avoid costs consequences for years of reprehensible conduct merely by behaving properly after litigation began.
3. Costs order. The local authority’s conduct towards the children over many years had been blatantly unlawful and unreasonable, had led inexorably to substantial litigation, and had generated extensive material requiring analysis. That conduct justified an order requiring the authority to pay the children’s costs, including the costs of the costs argument. The fact that the parties were publicly funded did not justify allowing substandard conduct to be subsidised by another public body.
4. Basis and assessment. Indemnity costs were refused. The authority’s cooperation in the litigation meant that the additional penalty or stigma associated with indemnity costs was not warranted. The costs were ordered on the standard basis, subject to detailed assessment. Liability for costs arising from the assessment of damages in the Queen’s Bench Division was left to that court.

The judgment records that the earlier proceedings resulted in discharge of the freeing orders and human-rights declarations in [2012] EWHC 1689 (Fam). The present judgment determined the related costs application in the Family Division.