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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> B (A Child), Re [2002] EWCA Civ 707 (22 April 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/707.html Cite as: [2002] EWCA Civ 707

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL
WITH APPEAL TO FOLLOW IF GRANTED

		Royal Courts of Justice Strand London WC2 Monday, 22nd April 2002

1. LORD JUSTICE THORPE: On 31st January Mr B appeared as a litigant in person seeking permission to appeal orders made by His Honour Judge McKittrick in Peterborough County Court on 21st November 2001. On that occasion, while dismissing his application for permission to appeal the judge's ruling on the injunction application and the judge's ruling on the specific issue order application, I directed this further hearing on notice to consider whether the judge's ancillary orders were properly made, namely the order under Section 91 (14) that Mr B bring no application without leave for a period of three years concerning his daughter A and the final order that he pay costs in the sum of £1,500.
2. The application this morning was directed to be a permission application with appeal to follow if permission granted. Clearly, permission is justified and we have conducted this morning's hearing essentially as the hearing of an appeal. While Mr B was in person on 21st November, now he is represented by solicitors and counsel. A's mother, Miss J, who was represented by solicitor and counsel on 21st November, is now in person. It has been very difficult for Miss J to make much contribution to this appeal since the points in issue are essentially legal and technical. However her solicitor, Mr Welcomme, has written a letter to the court and supported it with a bundle of 140 pages. He concentrates on establishing the past and he directs his fire against Mr B's conduct which he characterises as immoderate and aggressive throughout. While I can understand Mr Welcomme's desire that this court should have some flavour of the background, he has not made any relevant submissions on the two points that remain in issue. Miss Pope, for Mr B, has filed a characteristically thorough skeleton argument in which she has reviewed the authorities relevant to the grant of an order under Section 91 (14). In particular, she has set out the guidelines which were formulated by this court in Re P (Section 91 (14) Guidelines) [1999] 2 FLR 573. She has also relied upon the decision of the court in Re M [1998] 1 FLR 721 where it was said that a Section 91 (14) order that was procedurally flawed could not be saved by reliance on a litigation history which might otherwise found such an order.
3. Here it is enough to show that before the court on 21st November were two applications brought by Mr B in person. The first was an application which was of the most dubious merit since he sought injunctive relief not only against Miss J but also against her partner Mr A and her solicitor Mr Welcomme. The judge dismissed that application saying that the case had not been sufficiently proved. There was also the application for a specific issue order requiring the production of A's medical records. That application was not so unmeritorious in that there can be no doubt that Mr B had been striving for information about his daughter's health and well-being, and at one point had very nearly achieved his objective without the issue of proceedings. But nonetheless the judge in the end - quite rightly, in my view - decided that the appropriate route to the sort of information that could reasonably be required was not as extensive as that sought by Mr B. That application failed, and failed in the exercise of an impeccable judicial discretion. As the transcript shows, the judge, at the conclusion of the applications brought by Miss Elliott, simply announced, without any prior introduction, that he was making the Section 91 (14) order in respect of A.
4. The guidance given by this court in Re P shows that these orders are the exception and not the rule. The guidelines show that they should not be made by the court of its own motion without giving proper opportunity to the party that the court is minded to restrain to make submissions, and that must be particularly so where that party is in person. Add to that, in this case, the application that the court was dismissing was not an application that sought to extend the father's role in A's life. The only order in relation to contact was the order that had been made by Judge de Mille in September 1999. It was an order providing for indirect contact. This father had observed the period of two years restraint imposed by Judge de Mille, and at its conclusion had sought only further information about A rather than an extension of his relationship with her.
5. In all those circumstances the order seems to me not only procedurally flawed but particularly inappropriate in the circumstances of the case. It was, in my view, simply a question of judicial misdirection and I would propose to set aside that order.
6. The application that Miss Elliott did make on behalf of Miss J was, naturally enough, an application for costs. After all, not only Miss J but Mr A and Mr Welcomme had all had to come to court to resist an unmeritorious application for injunction. The application however was not put with the sort of particularity that it should have been. Miss Elliott only informed the judge that she was seeking their costs; she put them at about £1,500 and she sought them on an indemnity basis. She failed to provide any breakdown of those costs. The judge could not see what was claimed for solicitors' work and what was claimed for counsel. The judge could not see what was claimed in respect of the injunction application and what was claimed in respect of resisting the specific issue application.
7. Mr B opposed the application with reasoned submissions, but all the judge said at the end was:

"I am going to summarily assess the costs ..... I note that the three defendants have been legally represented ..... and I am going to award Miss Elliot[t] a global amount in this case and I am going to say that is £1,500. I do not make any order that it be on the indemnity basis, but I make a global amount of £1,500 ..... "

8. Again, in the judicial reasoning, it is hard to see that the judge has drawn any distinction between the failed injunction application and the failed specific issue application. One much more strongly attracted a costs order. Nor does the judge seem to have probed with Miss Elliott whether the £1,500 she sought was indeed an indemnity assessment. Without that probing, it seems an obvious possibility that in awarding the sum of £1,500 he was doing the very thing he proposed not to do, namely ordering indemnity costs.
9. What should we do to correct this error? There is, it seems to me, a simple choice between making an order fully justified in the exercise of independent discretion, namely Mr B to pay the costs of the failed injunction application on an indemnity basis, those costs to be assessed in the County Court, with no order in respect of the costs of the failed specific issue application. But there has to be a sensible overall regard to where such a correction would take the parties. There would then have to be the process of assessment in the County Court and, as it seems to me, the probability, or certainly the strong possibility, that a bill properly prepared and properly assessed would come out at fully £1,500, if not more. £1,500 does not buy much litigation. Preparing evidence to resist an injunction application, briefing counsel, attending court; all that for £1,500 seems to be a pretty modest assessment. It seems to me that nothing would be achieved for either party were we to take the course that is certainly open to us to take. Looking at the situation today in a common sense way, it seems to me that we would achieve nothing for either of the parties and simply impose additional work, not only on the lawyers but also on the court, work that would ultimately have to be paid for by someone.
10. In a broad adjudication I would not interfere with the order for costs, while recognising its technical deficiencies and that it might have been much more happily expressed. But I think no injustice will be done to anyone if we leave the order as to costs undisturbed. I would not see any opportunity to write into an order of this court today any arrangement that might be arrived at between these parents as to the future exchange of information as to A. The submissions made by Miss J and the answer from Miss Pope only revealed how sadly divided they are. They are incapable of agreeing what has happened in the past, let alone what should happen in the future. It seems to me wiser to leave that territory well alone.
11. The only order that I would propose would be to allow the appeal and to strike paragraph 2 from the amended order of 21st November.
12. LORD JUSTICE BUXTON: I agree with the order proposed by my Lord and the reasons that he gave. I would only add two very short footnotes. The first is that the Section 91 order was not sought by Miss J or those representing her. It was entirely at the judge's own motion. That, in my view, is revealing. Secondly, so far as the costs order is concerned, the judge was quite right to consider that the injunction application was entirely unwarranted. It is important to note that it was sought not merely against Mr A and Miss J but also against Mr Welcomme their solicitor.
13. In the affidavit sworn by Mr B in support of that application on 5th November 2001 he appears to me to say at page 3, that despite the difficulties in the past, he had not had trouble of the sort he complained of from Mr A or MIss J since a date in August 1999, and that the aggressive behaviour of persons unknown he set out is attributable to the agency of Mr Welcomme. A solicitor faced with allegations of that sort has no alternative but to defend himself. The evidence Mr Welcomme filed, although described by Miss Pope as historical, set out the history of previous such disputes where Mr B had not been believed by previous courts. It was entirely justified for Mr Welcomme, facing that allegation, to go into the matter in that degree of detail. Once he was placed in the position where he was obliged to do that, as my Lord has said the sum of £1,500 is a modest amount to be expended in defending allegations of that sort. If therefore the judge had been taken through the matter seriatim, as he should have been in regard to costs, I have no doubt whatsoever he would have regarded £1,500 as a modest assessment of the costs he could properly award in respect of the injunction.
14. Finally, I am at one with my Lord in thinking that it would be completely inappropriate for that issue to be sent back for costs assessment in the County Court. It is entirely unlikely that there would be any alteration to the figure of £1,500, and all that would be achieved is a further addition to the appalling history of dispute, disagreement and involvement of lawyers which has unhappily burdened the life of this young child.
15. I entirely agree with the judgment of my Lord.
(Appeal allowed and with no order as to costs. Transcript of judgment to be supplied to both parties at public expense)