H (A Minor) v Northamptonshire County Council & Anor

A court may make a third-party costs order against the Lord Chancellor where the statutory costs regime does not apply and, in all the circumstances, such an order is just. The requirement for exceptional circumstances is not an additional statutory precondition. Where a Human Rights Act damages claim is brought during care proceedings, the claim should generally be issued separately and supported by a separate public funding certificate. If liability and the material facts are agreed, the Legal Aid Agency should determine the applicability of the statutory charge before the final hearing. The court assessing damages and consequential costs should know the Agency’s position. Unreasonable delay or an erroneous statutory-charge decision which causes additional costs may justify a third-party costs order.

The claimant was a child involved in care proceedings brought by Northamptonshire County Council. During those proceedings he brought a Human Rights Act claim concerning admitted breaches of his Convention rights. The Legal Aid Agency initially indicated that the statutory charge might attach to damages recovered in the Human Rights Act claim, including costs incurred in the care proceedings. It later reversed that position shortly before the listed hearing.

The court had to determine whether it had power to order costs against the Lord Chancellor, whether that discretion should be exercised, the appropriate costs, the amount of Human Rights Act damages, and the proper procedure for such claims during care proceedings.

1. Power to make a costs order. The court held that section 51 of the Senior Courts Act 1981 and CPR rule 46.2 confer power to make a third-party costs order against the Lord Chancellor. The Civil Legal Aid (Costs) Regulations 2013 did not create a blanket immunity. Their relevant provisions applied where costs protection operated because a costs order had been made against a legally aided party. No such order existed here (paras [58]–[63]).
2. Applicable discretion. The governing question was whether, in all the circumstances, it was just to exercise the statutory power. Exceptional circumstances describe the unusual nature of the jurisdiction by comparison with ordinary litigation but are not a further precondition. Improper conduct by the non-party is likewise unnecessary (paras [46]–[49]).
3. Statutory charge and procedural fairness. Under section 25 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, the relevant question was whether the factual basis of the Human Rights Act claim was connected with the concurrent care proceedings. Where liability and the material facts were agreed, the Agency had sufficient information to decide the issue before the final hearing. Its decision was not dependent on the quantum of damages (paras [82]–[92]).
4. The Agency’s unequivocal indication that the charge would apply to care-proceedings costs, followed by a volte-face without significant new information, was wrong on the facts. It caused unnecessary costs. It was therefore fair, just, equitable and reasonable to order the Lord Chancellor to reimburse the additional costs incurred by the claimant and local authority (paras [91]–[107]).
5. The court approved Human Rights Act damages of £21,500, payable into court under CPR rule 21.11. It also gave guidance that damages claims should generally be issued separately, with a separate funding certificate, and that the Legal Aid Agency should decide the statutory-charge issue well before the final hearing (paras [108]–[117]).