WALL J: On 27 April 1999, in chambers and after a hearing lasting 6 days, I made care orders relating to three children, G, a girl aged 11, S, a girl aged 7 and H a boy aged 3. The case for making those orders was extremely strong, and although the facts were slightly unusual, there is nothing in my chambers judgment which merits reporting.
I have adjourned into open court because two important issues of practice have arisen. The first relates to wasted costs. The principal issue here is the duty of counsel and their instructing solicitors in proceedings under the Children Act 1989 to ensure that expert witnesses are kept up to date with events in the case; and, in particular, that before expert witnesses are called to give oral evidence, they have been sent and have read all relevant documents, particularly those which have emerged since their reports were written.
The second, but directly related issue concerns the steps which counsel and solicitors attending the pre-hearing review of an application under s 31 of the Children Act (or indeed a private law application relating to children) need to take to ensure that the case is ready for hearing.
The facts
The matter arises in the instant case in the following way. The local authority had essentially two bases upon which it argued that the threshold criteria under s 31 of the Act were met. The first was that the parents had exposed the children to a number of paedophiles, and had continued to do so, despite the children's names having been placed on the child abuse register, and substantial child protection work having been done with the family.
The second basis, as set out in the statement of case dated 8 April 1999 and drafted by counsel, was as follows:
'H has been the subject of repeated and unnecessary medical attention, more likely to have been brought about by [the mother] rather than [the father]. Health issues are a significant preoccupation for both parties.'
In addition, the local authority's case, in the same document, was that all three children had suffered emotional harm due to their parents' preoccupation with health issues.
The evidence to which, in its statement of case, the local authority pointed in relation to H was the following:
(a) a report from a consultant community paediatrician, Dr M;
(b) letters from the consultant paediatrician who had treated H;
(c) a report from H's health visitor;
(d) evidence from a friend of the parents;
(e) reports from the two psychologists (Drs F and B) instructed to assess the parents; and
(f) the report from a consultant psychotherapist instructed to assess the family's functioning and the prospects of rehabilitation for the family.
H had been diagnosed as being epileptic and had been the subject of extensive medical investigation instigated by his mother. At the date he was received into care, he was being treated with carbemazapine. However, the diagnosis of epilepsy had been made solely on the mother's description of fits which she said she had observed. Nobody else - and certainly none of the doctors treating H or the professionals dealing with him - had ever observed H having a fit.
As a consequence of the mother's reports, H had had two EEGs, a CT scan and a cranial ultrasound, all of which had been normal. He had been treated with carbemazapine, and with sodium valporate, the latter drug causing a widespread rash.
Following H's reception into care, his drug therapy was gradually withdrawn. At the date of the hearing, some 7 months after the drugs had been finally withdrawn, H remained symptom free, and Dr M's evidence to me was that H did not suffer from epilepsy.
On all the evidence I found as a fact that the mother had either invented or imagined H's symptoms, and that as a consequence he had suffered significant harm. He had been unnecessarily investigated and treated for a condition which he did not have.
As far as the more general allegations in relation to all three children were concerned, the local authority relied on the opinion of Dr M and one of the court statements from the principal social worker in the case to the effect that the children's over-presentation for medical attention had resulted in emotional harm in the case of all three children.
On 17 July 1998 the local authority had been given leave to disclose 'the case papers and medical records of the children' to Dr M, to report on the following matters:
(1) whether the written evidence and medical records disclose any matters suggesting that the children or any of them may have suffered sexual abuse, or have been victims of Munchausen syndrome by proxy ('MSBP');
(2) their health generally; and
(3) any other matters concerning their welfare raised by the parties in their joint letter of instruction, the contents of which shall be agreed and the letter sent by 24 July 1998.
As she made clear in correspondence addressed to the local authority, Dr M had great difficulty in gaining access to the medical records of G and S. This placed her in a considerable degree of difficulty in writing her report. On 7 August 1998 she wrote to the local authority solicitor, saying that she regarded MSBP as 'a key issue in this case', but that she was hampered in her inquiries because she did not have access to a number of important medical records. In particular, she had not seen the general practitioner records for G and S which were 'in transit' between their previous GP and the GP with whom they had been registered upon their placement in foster care.
As a consequence of these difficulties, a district judge on 28 August 1998 extended the time for Dr M's report to 30 September 1998. Dr M conscientiously wrote her report which is dated 23 September 1998. In it, however, she explained that she had still not been able to obtain the GP records for G and S. In particular, so far as S was concerned, Dr M was very concerned about a number of reported conditions which did not appear to be borne out by the limited records she had been able to see.
On 5 November 1998, when the matter was before the court for directions, it was agreed that the solicitor for the children, instructed by the guardian ad litem, would collate all the children's medical records and prepare a 'master bundle' of them. This proved to be a difficult and time-consuming process; it also involved the solicitor for the children writing to Dr M to enlist her help.
Finally, on 10 March 1999, more than 5 weeks before the case was due to start on 19 April 1999, the guardian was at last able to put together, and to serve on the solicitors to all the parties, a complete bundle of all the children's medical records.
On the following day, 11 March 1999, the local authority solicitor telephoned the children's solicitor to ask if the records should be included in the court bundle. It was agreed that they should not, but should be available in a separate bundle.
On 12 March 1999 the guardian ad litem and the children's solicitor had a conference with counsel, at which the decision was taken not to seek leave to show the papers to an expert in MSBP but to have the medical records available in court.
The pre-hearing review took place on 29 March 1999. The children were represented by their solicitor: the other parties (the parents were at that stage separately represented) appeared by junior counsel. Detailed directions were given, including an order that the local authority should, by 13 April 1999, file and serve a statement setting out its case on the threshold criteria under s 31 of the Act.
On 13 April 1999 junior counsel for the parents, on the advice of leading counsel (and no doubt as a result of counsel both having read the local authority's statement of case) telephoned both the solicitor for the local authority and the solicitor acting for the children asking them to ensure that the medical records were available in court at the hearing; and on 16 April 1999 the children's solicitor sent a fax to the local authority confirming that the bundle of medical records had been lodged.
What to my mind is astonishing is that, amidst all this activity, nobody appears to have thought of showing the medical records which had been obtained to Dr M, who, it will be remembered, had been hampered in her inquiries by not having seen the medical records of G and S.
The question of Dr M seeing the bundle does not appear to have been discussed at the pre-hearing review, and the simple fact of the matter is that (apart from the telephone calls from junior counsel to the solicitor for the children and the solicitor for the local authority) neither the solicitors, nor any of the experienced specialist counsel in the case put their minds to the need to ensure that Dr M had seen and read the bundle of medical records.
It was thus only when Dr M came to give her evidence, and leading counsel for the parents began to cross-examine her on her suggestion that S may have been a victim of MSBP, that it emerged that Dr M had not been shown the bundle of medical records which the children's solicitor had prepared, and which had been in existence by then for more than a month.
Dr M had set aside the whole of the afternoon of Monday, 19 April 1999 to give her evidence. It was immediately apparent when cross-examination began that she needed to look carefully at the medical records, and that it was impossible for her evidence to continue that afternoon. I accordingly had to send her away to read the notes. I asked her, if it was possible in the time-scale of the case, to put any further views she might have as a consequence of her study of the records into a short letter or report before she returned on another day to complete her evidence.
With great industry and courtesy, for which I am extremely grateful, Dr M was able
(a) to cancel a meeting she was due to attend on the following Friday (23 April 1999);
(b) to read the additional documents and write a supplementary report dated 21 April 1999 (the Wednesday of that week) which was then immediately circulated; and
(c) to return to court to give her evidence on the morning of Friday, 23 April 1999.
After I had to send Dr M away, I made it clear to counsel that I would require a detailed explanation before the end of the case as to why the documents had not been sent to Dr M, and why any increase in costs caused by the need for her to return on another day to give evidence should not be borne by those responsible at the Bar.
In the meantime, I was told by counsel for the children that discussions had taken place between counsel about documents so that 'the problems which first arose did not happen again'. I took this (and, in my judgment, was entitled so to take it) as a collective assurance by the Bar that there would no repetition of the same error in relation to the remaining experts, the two psychologists, Drs F and B, who were due to give evidence on the Thursday.
I was thus dismayed, when one of the psychologists, Dr F, who had assessed the father, was called to give evidence on Thursday, 22 April 1999 (22 April 1999) and was asked by leading counsel for the parents about the father's latest statement filed in the proceedings, which post-dated Dr F's report, and in which the father appeared to take a degree of responsibility for what had happened to the children. She replied that she had not seen the statement. It was an extremely long document (some 46 pages). I had to release her from the witness-box and she had to spend time outside court reading and absorbing it.
Fortunately, in the case of Dr F, it was not necessary for her to return another day, and she was able to complete her evidence during the course of Thursday afternoon.
Before the weekend, I gave notice to the Bar that I would require their help after judgment had been given on the following three matters:
(1) how it had come about that two expert witnesses in the case had not been kept up to date with relevant material;
(2) how it had come about that I had been given an assurance after the difficulties with Dr M that the same mistake would not be repeated; and
(3) why the Bar collectively should not be responsible for the costs thrown away by the need for Dr M to return and (if it resulted in additional costs) for Dr F to spend most of the day at court rather than less than the half-day which her evidence required.
I referred the bar to Re M (Minors) (Care Proceedings: Child's Wishes) [1994] 1 FLR 749, 758F and Re T and E (Proceedings: Conflicting Interests) [1995] 1 FLR 581, 592?593 and to paras 72 and 73 of Chapter 5 of the Best Practice Guidance contained in the Children Act Advisory Committee's Handbook of Best Practice in Children Act Cases, published in June 1997. That guidance reads:
'72. It is the instructing solicitor's duty to ensure that an expert who is to give oral evidence is kept up to date with relevant developments in the case.
73. It is the duty of the advocate calling an expert to ensure that the witness, in advance of giving oral evidence, has seen all fresh relevant material, and is aware of new developments.'
I heard argument after I had delivered my chambers judgment in the case on 27 April 1999, and reserved judgment. On 28 May 1999 I circulated my reserved judgment in draft, and invited counsel to make any further written or oral submissions in relation to it prior to it being handed down. All counsel were content to make further written submissions, which I have taken into account, and to some of which I will refer.
To complete the history, I should record that the head of legal services for the local authority wrote to me on 20 April 1999, acknowledging that the failure to pass the bundle of medical records to Dr M was an error. She explained that the solicitor having the conduct of the case had treated the documentation as material that would not be used in relation to the allegation of MSBP. Pressure of work was also prayed in aid. The letter made it clear that an apology had already been offered to Dr M.
Unfortunately, the letter, whilst offering a suitable apology, went on to assure the court that such an error was uncharacteristic of the local authority's legal team 'and will not occur again'. As I have already recounted, an identical error was committed on the very next day.
I am, none the less, grateful to the head of legal services for the local authority for her prompt and proper apology. Her attitude, I have to say, was in marked contrast to that of the Bar.
An overview
I have to express my surprise that what I regard as a very simple point required an afternoon's argument and has generated substantial further written submissions, plus a statement from the solicitor for the children exhibiting a bundle of correspondence.
Two elementary breaches of established good practice in the Family Division were committed by lawyers in the case. Insofar as those errors caused the costs of the case to be increased, it would, in my judgment, be quite wrong if either the council tax payers of the local authority or the Legal Aid Board should have to bear any increase in the costs caused by those errors. The only question, to my mind, is: who should pay?
I have to say that I find the reaction of the Bar to these simple and straightforward propositions disappointing. I expected - clearly with considerable naïvety - that the Bar would acknowledge that mistakes had been made; would assure me that the matter was in hand; and that neither the local authority's council tax payers nor the Legal Aid Board would be out of pocket. Had I received such assurances, the matter would have ended then and there.
As it is, I have not only had extensive further submissions, but the Bar has displayed a collective defensiveness which I find both surprising and unattractive, and which, I have to say, demonstrates a disappointing lack of understanding about the functions of counsel instructed in care proceedings.
Whilst paying lip-service to the concept that proceedings relating to children are non-adversarial, and that the process of evidence gathering and preparation for hearings should be a co-operative exercise between the lawyers in the case, the Bar seemed to me to be both unwilling to put those principles into practice and, with the belated exception of counsel for the local authority, to adopt what I can only describe as a 'not me, guv' approach.
It is, in my judgment, particularly disappointing that, nearly 8 years after the implementation of the Children Act 1989, it still appears necessary for a judge of the Division to spell out in a judgment elementary steps which are required to be taken to ensure that cases under the Children Act are properly prepared.
That it is necessary to do so, however, is demonstrated by the fact that the argument advanced by both leading counsel for the parents and counsel for the children in this case is that if counsel are to be held responsible for breaches of good practice then, in the words of the written submissions of counsel for the children:
'? counsel should be aware in advance and have the benefit of guidance (eg from the Children Act Advisory Committee in the Handbook of Best Practice) before being held liable for costs. The current guidance ? clearly makes the advocate calling a witness responsible for updating the witness. It does not follow from this that counsel for a guardian ad litem would expect to have to ensure that a witness called by a local authority had seen evidence filed by the parents. Equally, counsel for the parents would not expect to have to ensure that any expert called by the guardian had seen documents produced by the local authority.'
A second reason for addressing the issue of wasted costs in a full judgment is that this is, so far as I am aware, the first case in the Family Division in which judgment has been given in open court making an order for wasted costs against a member of the Bar in non-adversarial proceedings relating to children. I myself have only, in the past, made wasted costs orders twice, and in each case against solicitors.
Although, in the instant case, the sums in question are modest, the points of principle involved are important. No judge likes making, or wishes to make, wasted costs orders. But if counsel take the stance that wasted costs orders should only be made if a specific breach of an identifiable guideline of good practice can be proved, this judgment provides a useful opportunity for good practice to be further defined.
I do not propose to identify any of the lawyers in the case, nor do I intend to name the local authority. It needs to be said, however, that the case was heard in London. The London Family Bar, London local authorities and London solicitors, should be under no illusions about the concern felt by many of the judiciary at routinely sloppy case preparation, in particular the persistent failure of the advocates appearing in front of them to ensure that the documents in the case are in proper order, and that there is a bundle for the judge. Save in cases under the Hague Convention (where there is a standing instruction addressed to solicitors allocated by the Child Abduction Unit to prepare bundles for the court) practice judgments such as B v B (Court Bundles: Video Evidence), Note [1994] 1 FLR 323 and Re W (Abduction: Procedure) [1995] 1 FLR 878 are routinely ignored, as is para 5 of the Practice Direction: Case Management (31 January 1995) [1995] 1 FLR 456.
I have thus reluctantly come to the conclusion that in London the only way the London Bar and London solicitors will understand that the judiciary means to maintain proper standards is through the medium of wasted costs orders.
In this case, where there had been an order in relation to the preparation of bundles, the documents were well marshalled, and the advocacy in court was competent - in the case of leading and junior counsel for the parents extremely so. But in my judgment these factors do not detract from the need to maintain the highest standards across the board, and where, as here, those standards slip badly, and unnecessary costs are incurred, the court, in my judgment, needs to intervene to ensure that those costs do not fall on public funds. I shall return, in due course, to the appropriateness of making wasted costs orders in relation to discreet issues in cases such as the present.
Wasted costs orders in family proceedings: the role of the court
Unlike most civil proceedings, care proceedings under the Children Act 1989 are non-adversarial. Furthermore, public law care proceedings, in particular, are almost invariably conducted between parties all of whom, on one basis or another, are publicly funded. The local authority has to pay for care proceedings out of its annual budget: the parents and the child or children concerned (through their guardian ad litem) are usually both funded by the tax payer through legal aid. In cases where the Official Solicitor is involved, he, too, derives his budget from public funds.
Contested care proceedings are extremely expensive. However, inter partes orders for costs are rare. I cannot recall ever making an order for costs in care proceedings against parents or a guardian ad litem in favour of a local authority. Cases in which the court orders a local authority to pay the costs or the other parties are, in my experience, also very rare and the order in such circumstances is usually a mark of disapprobation for the way the local authority has behaved in relation to the children or their parents.
Parents facing care proceedings often contest them in circumstances where the likelihood of care orders being made is very high, and where the parents' case is effectively hopeless. As Ridehalgh v Horsefield, and Watson v Watson (Wasted Costs Orders) [1994] Ch 205, 233F, [1994] 2 FLR 194, 205H makes clear, however, lawyers for parents in these circumstances are not to be penalised for pursuing a hopeless case. Parents in such cases are at risk of losing their children; no decision could be more important for both the children and their parents, and all parents at such risk are entitled to proper representation and to have their cases put.
In the instant proceedings, the parents' difficult and, as it proved, unmeritorious case was ably and economically presented by leading counsel. Of that I have no complaint. Indeed, counsel for the parents argue in their latest submissions that the preceding sentences are 'a pale reflection' of the '(exceedingly) complimentary remarks' I made in the substantive judgment about their conduct of the case overall.
It follows that a local authority which obtains a care order in a 'hopeless' case will be unlikely either to obtain or even seek an order for costs against impecunious parents, or the Legal Aid Board or the lawyers conducting the parents' case.
In these circumstances, in my judgment, and in clear contrast to commercial or other adversarial civil litigation, it is the court which has to be the watchdog over the proper expenditure of public funds. The Children Act 1989 specifically gives the court a proactive, case management responsibility in both public and private law cases: see ss 11 and 32, and the numerous cases dealing with case management. In my judgment, therefore, in care proceedings it is frequently likely to be the court which will need to initiate proceedings relating to wasted costs orders.
The court clearly has the jurisdiction to initiate such proceedings: see Ridehalgh v Horsefield [1994] Ch 205, 238, [1994] 2 FLR 194, 210. Furthermore, since Ridehalgh v Horsefield was decided, Practice Direction: Case Management (31 January 1995) [1995] 1 FLR 456 gives clear warning to practitioners about the consequences of failure to conduct cases economically:
'1. The importance of reducing the cost and delay of civil litigation makes it necessary for the court to assert greater control over the preparation for and conduct of hearings than has hitherto been customary. Failure by practitioners to conduct cases economically will be visited by appropriate orders for costs, including wasted costs orders.'
In my judgment, therefore, it is entirely appropriate in a case such as the present for the court to initiate the inquiry whether or not a wasted costs order should be made.
Counsel for the parents, in their second set of submissions, join issue with these observations. They submit:
'2. The purpose and application of the wasted costs jurisdiction
2.1. In Ridehalgh v Horsefield [1994] Ch 205, 231D?E, [1994] 2 FLR 194, 203D-F it was said that there was no room for doubt about the mischief against which these new provisions were aimed: this was:
"… the causing of loss and expense to litigants by the unjustifiable conduct of litigation by their or the other side's lawyers. Where such conduct is shown, Parliament clearly intended to arm the courts with an effective remedy for the appropriate protection of those injured."
2.2. In addition, important observations were made, during the course of the Ridehalgh judgment (at 238D?F and 210E-F respectively) about the advisability of the court initiating a wasted costs inquiry. It was said:
"Under the rules, the court itself may initiate the inquiry whether a wasted costs order should be made. In straightforward cases (such as failure to appear, lateness, negligence leading to an otherwise avoidable adjournment, gross repetition or extreme slowness) there is no reason why it should not do so. But save in the most obvious case, courts should in our view be slow to initiate the inquiry. If they do so in cases where the inquiry becomes complex and time-consuming, difficult and embarrassing issues on costs can arise: if a wasted costs order is not made, the costs of the inquiry will have to be borne by someone and it will not be the court; even if an order is made, the costs ordered to be paid may be small compared with the costs of the inquiry. In such cases courts will usually be well advised to leave an aggrieved party to make the application if so advised; the costs will then, in the ordinary way, follow the event between the parties."'
Of course, I accept that Ridehalgh v Horsefield is binding on me, and of course I follow the guidelines it lays down. I did not initiate the inquiry as to wasted costs lightly. However, it is noticeable that the Court of Appeal, at the outset of its judgment in that case, says this:
'There are six appeals before the court. All of them (save one, in which this issue has been compromised) raise the same question: in what circumstances should the court make a wasted costs order in favour of one party to litigation against the legal representative (counsel or solicitor) of the other?'
That is not the question in the instant case, and s 51(6) and (7) of the Supreme Court Act 1981, as substituted by the Courts and Legal Services Act 1990, clearly do not limit the jurisdiction to make wasted costs orders to the circumstances described in the passage from Ridehalgh v Horsefield which I have cited.
Furthermore, none of the cases which are used to illustrate the principles to be applied is a family case relating to children. The language of Ridehalgh v Horsefield is thus essentially the language of adversarial civil or commercial litigation.
Costs in the Family Division, and particularly in care cases, do not 'follow the event'; and the phrase 'the causing of loss and expense to litigants by the unjustifiable conduct of litigation by their or the other side's lawyers' is inapt to describe what happens in public law family cases. Plainly, however, this does not mean that counsel paid out of public funds in care proceedings are immune from orders for wasted costs.
In a case such as the present, who is to be the watchdog over public funds if not the court, charged as it is with its proactive duty to manage cases and to ensure that they are conducted properly and economically?
In my judgment, therefore, counsel's reliance in this respect on Ridehalgh v Horsefield is misconceived, and, I have to say, demonstrates a misunderstanding of the functions both of the court and the lawyers in preparing and conducting non-adversarial proceedings under the Children Act 1989.
Procedure
In order to explain how the arguments in this case came to be addressed to me, it is necessary for me to explain the procedure I adopted. Rule 48.7 of the Civil Procedure Rules deals with wasted costs orders. Only two subrules of r 48.7 seem to me to be relevant here: they are (a) that where the court is considering whether to make a wasted costs order, it must give the legal representative a reasonable opportunity to attend a hearing to give reasons why the court should not make such an order; and (b) that when the court makes a wasted costs order, it must specify the amount to be disallowed or paid.
In Ridehalgh v Horsefield [1994] Ch 205, [1994] 2 FLR 194, the Court of Appeal not only laid down the criteria for making wasted costs orders, but gave guidance on the procedure to be followed. At [1994] Ch 205, 238, [1994] 2 FLR 194, 210-211 under the heading 'Procedure' the judgment of the Court of Appeal reads:
'The procedure to be followed in determining applications for wasted costs must be laid down by courts so as to meet the requirements of the individual case before them. The overriding requirements are that any procedure must be fair and that it must be as simple and summary as fairness permits. Fairness requires that any respondent lawyer should be very clearly told what he is said to have done wrong and what is claimed. But the requirement of simplicity and summariness means that elaborate pleadings should in general be avoided. No formal process of discovery will be appropriate. We cannot imagine circumstances in which the applicant should be permitted to interrogate the respondent lawyer or vice versa. Hearings should be measured in hours, and not in days or weeks. Judges must not reject a weapon which Parliament has intended to be used for the protection of the injured by the unjustifiable conduct of the other side's lawyers, but they must be astute to control what threatens to become a new and costly form of satellite litigation.'
In the instant case, as I have already explained, I made it clear shortly after Dr M had departed that I would require the Bar to show cause why it should not pay the costs which had been incurred as a consequence of the failure to pass the bundle of documents to Dr M. I referred the Bar to the relevant authorities and the Children Act Advisory Committee's Handbook of Best Practice in Children Act Cases. I invited submissions in writing to be handed in prior to judgment in the main proceedings, and I set aside the afternoon of the day on which judgment was given for argument.
I also made the draft of this judgment available to counsel several weeks before it was to be handed down, so that counsel could consider it and, if they wished, make further oral or written representations on it, which they have done.
In my judgment, this procedure more than satisfies the requirements for fairness set out in Ridehalgh v Horsefield. I therefore turn to the question of whether or not the errors made fall within s 51(6) and (7) of the Supreme Court Act 1981, as substituted by the Courts and Legal Services Act 1990.
The errors made
The need for an expert witness to be kept up to date and the need to ensure that such a witness has seen all relevant material are issues which need to be continuously addressed from the time the witness is instructed to the time he or she gives evidence in court. However, in the context of the instant case, the need to address the point arose on three distinct occasions:
(1) when the bundle of medical records sought by Dr M was finally obtained by the guardian ad litem;
(2) at the pre-hearing review;
(3) when the latest statements of the parents were served and needed to be seen by Drs F and B.
It was accepted by the Bar that the failure to supply Dr M with the medical records of G and S was a clear breach of the practice judgments in Re M (Minors) (Care Proceedings: Child's Wishes) [1994] 1 FLR 749, 758F and Re T and E (Proceedings: Conflicting Interests) [1995] 1 FLR 581, 592?3 and, more importantly, of paras 72 and 73 of Chapter 5 of the Best Practice Guidance contained in the Children Act Advisory Committee's Handbook of Best Practice in Children Act Cases, published in June 1997.
Indeed, leading counsel for the parents, in both sets of her written submissions, described the failure to keep both experts up to date as 'fundamental', and in her second set of submissions argued that it was 'beyond belief' that something so basic had not been done.
Counsel for the local authority told me that she did not know of the existence of the contents of the bundle of medical records 'until a couple of working days before the hearing began', and that their existence had not been raised at the pre-hearing review on 29 March 1999. She was, however, told that the documents had come from the guardian ad litem, who would not be relying on them, but that the parents' legal representatives wished them to be placed before the court. Counsel received the bundle herself on Friday, 16 April 1999 and told me that she had 'great difficulty' in accepting that she should be held responsible for the failure to send the documents to Dr M.
The duties of counsel instructed by a local authority in a care case
What are the duties of counsel instructed on behalf of a local authority in a care case? In my judgment, as counsel for the local authority in this case accepted, counsel so instructed is the head of a team, and is responsible for the presentation of the local authority's case.
Everybody working in the family justice system knows or ought to know (a) how much contested care cases cost the tax and council tax payer - particularly in the High Court - and (b) how stretched local authority resources are. Local authorities which instruct specialist counsel, often at considerable expense, are entitled to expect, amongst other things:
(1) that counsel will have addressed their minds to all the important decisions to be taken for the proper conduct of the case and that the case will be conducted efficiently by counsel in court;
(2) that counsel will ensure that the evidence has been properly assembled and the witnesses appropriately timetabled;
(3) that counsel will ensure that expert witnesses to be called by the local authority have seen all fresh relevant material and are aware of new developments.
It is partly to enable the advocates in the case to fulfil these duties that pre-hearing reviews are held.
Furthermore, counsel in the instant case had drafted the local authority's statement of case, which expressly relied on the evidence of Dr M. Counsel knew that Dr M was an important witness who was due to be called on the first day. Counsel had had the conduct of the pre-hearing review. She had been told that the parents wanted the notes to be before the court. In my judgment it was plainly her responsibility to ensure that Dr M had received and digested all fresh relevant material, and was aware of new developments - in this case, of course, that the long sought for medical records had been received.
It should have been patently obvious to counsel not only that Dr M had wanted this very material for the compilation of her report, but that counsel for the parents, who were challenging Dr M's conclusions, would want to cross-examine Dr M on it.
The local authority solicitor in charge of the case is plainly hard-working and conscientious. Her preparation of the statements in the case, and her presentation of the documentation were both perfectly satisfactory. In my judgment, she also had a clear duty to ensure that the bundle of medical records was passed on to Dr M; and equally clearly, she was in breach of that duty. She is, accordingly, also liable in my judgment to have a wasted costs order made against her, and I certainly would not want the message of this judgment to be that solicitors can seek exculpation for any of their failings on the basis that they had entrusted the conduct of the case to counsel.
None the less, in my judgment the local authority solicitor was entitled to expect that specialist counsel instructed in the case would give her appropriate advice; and in my view, on the particular facts of this case, the primary responsibility for the failure to ensure that the bundle was seen by Dr M rests with counsel. She was the leader of the team, and in my judgment, she has to take responsibility for any failures within the team.
As to the second error, the failure to show the parents' statements to Dr F, counsel for the local authority acknowledged that she had indeed made an error in not ensuring that the two psychologists had seen the statements. She 'assumed' they had. She explained the Bar's assurance to me that the error with Dr M would not be repeated by telling me that there had been a discussion at the Bar designed to ensure that all the experts had seen each others' reports. She had not considered the parents' statements in this context.
Whilst admitting the second error, counsel for the local authority argued that there had been no additional costs so far as Dr F and Dr B were concerned, since both were 'effectively engaged for the day in any event'. Thus although there was 'a break in hearing time of about 35 minutes, everything that could be done that day was done and within the normal time-limits'. I will return to this point later.
I have further considered the position of counsel for the local authority in the light of the additional submissions made to me following receipt of my interim judgment. In fairness to her, I think it right to set out the bulk of what she wrote. She says:
'I accept without reservation that as counsel for the local authority I was head of a team and thus responsibility for all our acts and omissions clearly rested with me. I expressed this acceptance in my submissions - indeed no one so instructed could possibly argue otherwise. In my [previous submission] I stated that I had "great difficulty in accepting that I should be held responsible for the failure to send [the notes] to Dr M". I was referring to the timing of my discovery of their existence. You told me I was wrong and I did not demur. I recognise that I was wrong in my view. I was clearly putting my own particular situation above my duty ?'
Counsel then explains her particular situation leading up to the hearing and continues:
'However, I still have great difficulty in accepting responsibility, in the sense envisaged by Ridehalgh for the failure to send the notes to Dr M from the date of the pre-trial review until 15 April 1999, since nothing had occurred to alert me to the possibility that they might have been found. Moreover, from the point of view of the local authority, the report of Dr M was clear and sufficiently compelling without any further inquiry; therefore I cannot see how I could have been expected to ask the other legal representatives whether the notes had happened to be found. Although I say this, I do not want to put the blame on anyone else. I would also add that the issue for me is not the money but the principle.
So far as my second failure is concerned, I hope that my letter made it plain that I have always accepted responsibility for that. I have never had any interest in blaming anyone else. It does not matter to me whether anyone else may be at fault since the only relevant issue for me is my own failure.
As I understand the [draft] judgment, my submissions in relation to costs which may have actually been wasted have been interpreted as an attempt on my part to avoid my responsibility in principle. May I assure you that this was not my intention? As I explained, I had reread Ridehalgh and it was my submission that the court had to be satisfied that specific costs had been wasted. I was simply addressing the point upon which I had taken instructions. Apart from what I said in my letter of 25 April 1999, I would only respectfully remind you that had the notes been sent to Dr M in due time, the local authority would have had to commission the further report in any event. It is for this reason that I submit that the expense of the second report should not be viewed as "wasted costs". I do not say the same of Dr M's attendance on 23 April 1999. What I said on 28 April 1999 was that hitherto Dr M had not charged the local authority for her attendance at court because of her employment by the local authority. Clearly, if she does charge on this occasion, then costs will have been wasted. I realise that this may be seen as another attempt by myself to avoid responsibility. It is not so intended. Moreover, I am acutely aware of the sheer trouble and inconvenience which her second appearance must have caused and that I truly regret.
Finally, I would like to mention something which may not be strictly relevant to the issue. During the course of my submissions I enlarged on the regrets which I expressed at the end of my letter of 25 April 1999 by speaking in blunt terms as to my attitude towards my own failures and as to the lesson I had learnt regarding awareness of the ambit of my duties. I meant what I said. I therefore regret that your judgment does not reflect this and I trust that nevertheless the same is accepted.'
I accept that counsel for the local authority makes a sound point when she argues had the notes been sent to Dr M in due time, the local authority would have had to commission the further report in any event. She is, therefore, right in my judgment to seek to exclude the costs of writing the second report from any wasted costs order.
I also accept without reservation the matters expressed in counsel's final paragraph.
The attitude of counsel for the parents
Leading counsel for the parents immediately acknowledged that if there had been an error, she, as the leader of the team, was responsible. That was entirely appropriate.
However, she went on to submit that when, on her advice, her junior had telephoned both the solicitor for the local authority and the children's solicitor to tell them that they wished the bundle of medical records to be before the court, they had fulfilled their duty in the matter. With disarming bluntness, she submitted that the error was so basic, and the need to give the documents to Dr M so obvious, that it would have been invidious - almost offensive - for her junior to have asked whether the documents had been shown to Dr M.
In her second set of written submissions counsel for the parents expands this submission in these terms:
'Junior counsel's telephone contact with the local authority and with the guardian's solicitor on 12/13 April 1999 made it abundantly clear that from the parents' standpoint, the medical bundle was (a) material to the live issues and (b) should be filed with the court because it would be used during cross-examination.'
On reflection and with the further detail provided by counsel for the parents, I accept that what junior counsel did on 12/13 April 1999 was reasonable, and that she was entitled to assume that both the local authority and the children's lawyers would appreciate the significance of her request.
This argument, however, does not address the point that Dr M's evidence, and her need to see the medical bundle, was not addressed at the pre-hearing review. The parents were challenging Dr M's evidence on factitious illness abuse in relation to all three children. Dr M had written a report which was hostile to the parents' case but in relation to which Dr M had made it clear that she had not seen all the material. The material had been available well in advance of the pre-hearing review.
As I have already made clear, counsel for the parents were not only entitled to ask, but, in my judgment, junior counsel should have asked at the pre-hearing review whether the new documentation had affected Dr M's conclusions. It was clearly pertinent to their case preparation to know whether or not the local authority was still relying on Dr M's evidence in relation to G and S in the light of the medical records now received and/or whether it was the intention of the local authority to invite Dr M to update her report in the light of the additional information received.
In my judgment, a pre-hearing review is designed precisely to enable issues such as this to be clarified and for this type of discussion to take place. By their failure to ask these questions it seems to me that counsel for the parents cannot entirely escape responsibility for the failure to ensure that Dr M had the documents.
If this was adversarial litigation, they would be on strong ground, and entitled to sit back whilst their opponent made an elementary mistake. But this is not adversarial litigation.
I repeat what I have said on a number of occasions, for example in Re MD and TD (Children's Cases: Time Estimates), Note [1994] 2 FLR 336, that the assembling of the evidence for a care case should be a co-operative exercise in which members of the Bar should talk freely to each other about the case to ensure that it is properly prepared and that the evidence is properly marshalled.
In my judgment, the question of Dr M's evidence should have been discussed at the pre-hearing review. The failure to do so is, in my judgment, a collective failure which lies on all the lawyers who attended the pre-hearing review.
I am particularly unimpressed by the argument that basic questions should not be asked because they are invidious or might be perceived as offensive. As I have already made clear, it was an important part of counsel for the parents' case preparation to know whether or not Dr M had changed her view as a result of seeing the full medical bundle of medical records. To ask whether or not she had seen the material was, accordingly, an entirely legitimate and, indeed, necessary question.
However, as this judgment will make clear when it considers the specific question of wasted costs, I accept, as I accepted in the draft judgment, that in Ridehalgh terms, and in the light of the guidance given in paras 72 and 73 of Chapter 5 of the Best Practice Guidance contained in the Children Act Advisory Committee's Handbook of Best Practice in Children Act Cases, it would not be appropriate to make a wasted costs order against counsel for the parents in relation to the first error. I will deal with the second error in due course.
The attitude of counsel for the children
Whilst acknowledging that he was the leader of the children's legal team, counsel for the children sought to persuade me that he could avoid responsibility on the basis that the children's legal team had a 'reasonable excuse'. They had sent the documents to the local authority. They were entitled to assume, and did assume, that the local authority would have passed them on.
I was also told by counsel for the children that the judge who took the pre-hearing review had discouraged the guardian from seeking further expert advice on the MSBP issue, and that because the local authority's case on the first limb (exposure to paedophiles) was so strong, counsel for the children was unclear as to the extent to which the local authority was relying on the evidence of Dr M. Furthermore, the decision was taken by the children's legal team that the guardian would not seek to rely on the MSBP argument.
I am unimpressed by all three points. The judge was plainly correct to discourage the guardian ad litem from seeking additional evidence on the question of MSBP. There was sufficient evidence already, and a further expert opinion was otiose. But as I have already made clear, if there was any doubt about the relevance of MSBP as an issue, it should have been discussed and resolved at the pre-hearing review.
The fact that the children's legal team was not minded to pursue the MSBP argument is, in my judgment, irrelevant. The team knew that this was an issue on which the local authority relied, and that it was disputed by the parents.
As facilitators and evidence gatherers, lawyers acting for children have a particular status in a public law application. They have a well-established responsibility for ensuring that the issues in the case are clearly defined.
Once again, on different facts and in a different category of litigation, it is likely that the 'reasonable excuse' argument would have weight. But here, the children's legal team had willingly shouldered the responsibility of obtaining and collating the medical records. The children's solicitor had even, perfectly appropriately, been in correspondence with Dr M on the subject.
I have to say I find it surprising, to put the matter at its lowest, that having, at last, obtained all the records, counsel for the children did not raise the question of a further report from Dr M at the pre-hearing review.
Responsibility for the second error
Despite the further submissions made, it remains clear to me that all counsel are collectively responsible for the failure to ensure that Drs F and B had seen the parents' statements. Whilst, once again, in other circumstances blame might lie principally if not solely with counsel for the local authority, it was counsel for the children who volunteered the assurance given to me that steps had been taken to prevent repetition of the error over Dr M, and when he said it, counsel for the parents did not demur.
In the light of what had already happened in the case, I took counsel's assurance to mean that the matter had been fully discussed at the Bar. I cannot understand why it was not. Counsel for the parents, however elementary the proposition may have seemed to them, should have sought assurances that the witnesses had seen their clients' statements, as should counsel for the children.
Counsel for the parents seek to avoid responsibility on this aspect of the case on two bases. First, they place responsibility for the error on the shoulders of counsel for the local authority. Secondly, they advance the 'fog of war' argument. I propose to set out their submissions on this part of the case in full:
'6.1. There was discussion, we understand, between counsel for the local authority and for the guardian which centred upon the need for Dr F to see the guardian's report. Neither leading nor junior counsel was a party to that conversation.
However, it is material, in the context of the court's remarks about collective responsibility, that junior counsel recalls saying to each of counsel for the local authority and the guardian before they discussed together the material which was to be drawn to the attention of the remaining experts, words to this effect: "Let's make sure they have seen everything".
6.2. We repeat our oral submission that it is so fundamental that an expert in a care case should be provided with after-acquired material that reminders, or monitoring of the local authority's actions, on our part, would have been invidious. Even if it be right that in the particular circumstances which arose a "new" collective duty was placed upon counsel other than counsel for the local authority, we submit that by her entreaty to the local authority, junior counsel fulfilled that duty.
6.3. We do not accept that we were under a duty to further inquire of the local authority that something so basic had been done. It defied belief that it had not. We refute the assertion that such a collective responsibility exists or that, by failing to remind the local authority of their duties, we did anything that was either unreasonable or negligent. No one could have reasonably foreseen, in advance of the arrival of Drs F and B that they had not been updated with new material. In leading counsel's experience, the situation which arose in this case was unique. Never before, in almost 20 years, has she experienced anything remotely similar to the errors made in this case. To that extent, the actions of leading and junior permit of an entirely reasonable explanation. They acted with the competence expected of ordinary members of the profession.
6.4. The following extract from the Ridehalgh judgment is directly relevant to the issue of the failure to ensure that Dr F had been updated, we submit:
"Any judge who is invited to make or contemplates making an order arising out of an advocate's conduct of court proceedings must make full allowance for the fact that an advocate in court, like a commander in battle, often has to make decisions quickly and under pressure, in the fog of war and ignorant of developments on the other side of the hill. Mistakes will inevitably be made, things done which the outcome shows to have been unwise. But advocacy is more an art than a science. It cannot be conducted according to formulae. Individuals differ in their style and approach. It is only when, with all allowances made, an advocate's conduct of court proceedings is quite plainly unjustifiable that it can be appropriate to make a wasted costs order against him." (At 236F?H and 209A-C respectively.)
6.5. No act or omission on the part of leading or junior comes close to being in the category of "quite plainly unjustifiable". They should not be held responsible in the way anticipated in the draft judgment.'
I do not accept these arguments which, I have to say, smack of over-protestation, and are to a substantial extent mutually inconsistent. 'It was so obvious' does not sit easily with an omission caused by 'the fog of war'. I am particularly unimpressed by reliance on the latter.
On counsel's own argument, one elementary blunder had occurred. Documents had not been shown to a witness whom counsel argue they had made clear they intended to cross-examine on that documentation. In my judgment, all counsel should have been at pains to ensure that that did not happen again.
The issue was specifically raised by counsel for the children. It was clearly being addressed by the Bar as a discreet issue. There were two overnight periods for reflection between the evidence of Dr M and that of Dr F. To argue that it was not considered by counsel for the parents, and that this is analogous to the situation of 'a commander in battle, [who] often has to make decisions quickly and under pressure, in the fog of war and ignorant of developments on the other side of the hill' is, in my judgment, quite unreal.
I also have to say that I regard the remark: 'Let's make sure they have seen everything' as aggravating rather than mitigating the position of counsel for the parents. If it is being put forward as an argument that junior counsel for the parents had addressed her mind to the issue, it is, at best, unhelpful. Expert witnesses are not shown 'everything': they are shown those documents in the case which are of relevance to the issue or issues to which their evidence is directed.
It would have taken only moments for junior counsel for the parents to have asked counsel for the children and the local authority whether the former's assurance incorporated the parents' latest statements, upon which leading counsel intended to cross-examine.
When counsel for the children told me that discussions had taken place between counsel about documents so that the problems which first arose did not happen again, counsel for the parents did not dissent, or indicate to me that they had not been part of the discussions. I assumed they had been - as they plainly should have been.
I am very conscious of the fact that the parents in this case were volatile and difficult clients, and accept without hesitation counsel's descriptions of their behaviour outside court. I am fully aware of the difficulties of representing such parents in cases such as this. I did so many times at the Bar both as junior and leading counsel.
However, one of the reasons why such difficult clients, whose case is unmeritorious, receive legal aid certificates to be represented by two counsel is precisely so that the burden can be shared, and different areas of the case covered by leader and junior. The first error should have concentrated the minds of all the Bar on the need to avoid a repetition. For junior counsel to remark 'Let's make sure they have seen everything' is, in my judgment, no answer to the criticism I make.
Because I regard assembling the evidence for a children's hearing as a co-operative exercise within the context of non-adversarial proceedings, responsibility for what has happened in this case seems to me to be collective. I thus find it difficult to exonerate the Bar, or any one member of it, from responsibility for this unhappy state of affairs. The only question, in my judgment, is whether what occurred in this instance can properly be visited, on the facts of the case, with a wasted costs order against anyone other than counsel for the local authority.
The purpose of a pre-hearing review
Before turning to the specific criteria for making wasted costs orders, I need to address the argument that there is no guidance for the Bar on what should happen at a pre-hearing review.
For the reasons I have already given, the evidence of Dr M and the existence of the medical records should have been raised and discussed at the pre-hearing review on 29 March 1999. This would, in my judgment, have been elementary good practice.
However, since there is, apparently, no specific guidance on what should happen at a pre-hearing review, I propose to set out what should happen, even though what follows is, in my view, a statement of the obvious.
The purpose of a pre-hearing review is to enable the advocates to ensure that everything has been done which needs to be done to ensure that the case is ready for hearing. Counsel and solicitors should go to such reviews with a complete mental or documentary 'checklist'. This should, of course, include a list of the witnesses who are to be called at the final hearing, the length of time their evidence is likely to take; and, where expert witnesses in particular are concerned, the issues which they are to address; and when, in the context of the case, they are going to be called.
It is for this purpose that the witness 'template' referred to in Re EC (Disclosure of Material) [1996] 2 FLR 123, 128G was devised. In my view such a template should be standard practice for a case of any complexity, and it would clearly have been good practice for such a template to be used in this case. That is so not least because it concentrates the minds of the advocates on the length of time a witness will need and, by direct inference, the issues which that witness will address.
Since timetabling the evidence is an important part of a pre-hearing review, there should have been discussion in this case both about the reliance the local authority was to place on the evidence of Dr M and about how long Dr M's evidence would be likely to take.
Counsel for the parents argue that both junior counsel for the mother and the father (the parents at that point were separately represented):
'? recall that the strong impression given by both the local authority and the guardian was that factitious illness abuse would not be relied upon at the substantive hearing. As the terms of the order made on that day disclose, there can be no force whatsoever in the notion that the Bar was paying anything other than proper attention to the many relevant considerations that arose. The order is 14 paragraphs long ?'
I cannot accept this argument. First, it is simply not good enough to rely on a 'strong impression'. The issues should be nailed. That is what a pre-hearing review is for. As I have already stated, it was in particular a highly relevant part of the case preparation for counsel for the parents to know the extent to which the local authority was relying on the evidence of Dr M and whether or not she was going to furnish a further report in the light of the additional notes now to hand.
Secondly, if that was the impression given, it plainly did not survive receipt of the local authority's statement of case dated 8 April 1999.
For the avoidance of any future doubt, therefore, and to meet the point made by counsel for the children that, before counsel can be condemned in wasted costs they have to have 'the benefit of guidance', I make explicit what I have to say I thought was already self-evident, namely that when advocates attend a pre-hearing review it is their collective responsibility to ensure:
(1) that the issues in the case to be addressed at the final hearing are clearly identified;
(2) that the evidence to address those issues is either already available or that directions are sought from the court to ensure that it is available in good time for the hearing;
(3) that all the expert witnesses in the case have been sent - or will prior to giving evidence be sent - all relevant material which has emerged since their reports were written; or where, as here, the material required by an expert witness had not been seen by that witness, that the material would be sent and a further report, if necessary, commissioned;
(4) that the witnesses required to give evidence at the hearing have been identified;
(5) that the length of time required for the evidence of each witness has been appropriately estimated;
(6) that the witnesses have been timetabled;
(7) that expert witnesses, in particular, have been allotted specific dates and times for their evidence; and that the length of time allotted for their evidence has been carefully assessed to ensure that it can be given without the witnesses being inconvenienced by having to return to court on a second occasion to complete their evidence;
(8) that the documents required for the case are in good order and bundled appropriately; that there is a chronology and, where required, a short statement of case from each party;
(9) that the guardian's report will be available in proper time for the hearing;
(10) that appropriate reading time and time for an extempore judgment has been allowed to the judge.
I emphasise that I regard all these points as the collective responsibility of the solicitors and counsel in the case. Counsel and solicitors, as has been said many times, must talk to each other freely about case preparation, which is a non-adversarial collective responsibility.
It should also not be overlooked that the court has a duty at the pre-hearing review to adopt a proactive and rigorous approach to the issues in the case with a view to ensuring that all the issues have been appropriately defined and addressed.
Is this a case for wasted costs?
Does the conduct I have described in this case fall within the wasted costs parameters - and if so, against whom should wasted costs orders be made?
Section 51(6) and (7) of the Supreme Court Act 1981, as substituted by the Courts and Legal Services Act 1990, with effect from 1 October 1991, states that in proceedings in, inter alia, the High Court, the court:
'? may disallow, or (as the case may be) order the legal or other representative concerned to meet the whole of any wasted costs or such part of them as may be determined in accordance with rules of court.
(7) In subsection (6) "wasted costs" means any costs incurred by a party—
(a) as a result of any improper, unreasonable or negligent act or omission on the part of any legal or other representative or any employee of such a representative ?'
The terms 'improper, unreasonable or negligent' in this context are fully discussed in the judgment of the Court of Appeal in Ridehalgh v Horsefield [1994] Ch 205, 232-233, [1994] 2 FLR 194, 204-205. I do not think that the conduct which I have discussed above can be described as 'improper'. The question, to my mind, is whether or not it is either unreasonable or negligent.
'Unreasonable' is described in Ridehalgh v Horsefield as apt to describe conduct 'which is vexatious, designed to harass the other side rather than advance the resolution of the case'. It is plainly not limited to such conduct. The 'acid test' described in Ridehalgh v Horsefield is 'whether the conduct permits of a reasonable explanation'. Judged by that test, I find that (1) the conduct of counsel for the local authority and the local authority solicitor in failing to ensure that Dr M had seen the bundle of medical records; (2) the failure of the advocates to address the same issue at the pre-hearing review; and (3) the conduct of all counsel in falling to ensure that Drs F and B had seen the parents' latest statements do not permit of a reasonable explanation. In my judgment, therefore, the conduct in all three respects was unreasonable.
It is also clear from Ridehalgh v Horsefield [1994] Ch 205, 232 [1994] 2 FLR 194, 205 that the term 'negligent' is not to be used as a term of art, but 'in an untechnical way to denote failure to act with the competence reasonably to be expected of ordinary members of the profession'.
Once again, judged against this standard all three pieces of conduct described fall, in my judgment, easily within the definition.
I do not, however, think that in the light of the terms of paras 72 and 73 of Chapter 5 of the Best Practice Guidance contained in the Children Act Advisory Committee's Handbook of Best Practice in Children Act Cases as they stand, I can properly visit wasted costs orders in this respect upon counsel other than counsel for the local authority.
Whilst I regard it as 'unreasonable' and 'negligent' within Ridehalgh v Horsefield that the question of Dr M's evidence was not raised and resolved at the pre-hearing review on 29 March 1999, I am reluctantly driven to the conclusion, in terms of wasted costs orders, which I acknowledge to be serious, that counsel may be entitled to argue that neither any practice judgment nor the Best Practice guidelines specifically place the duty to ensure that an expert witness is up to date upon any counsel apart from counsel calling the expert witness in question.
However, as this judgment makes clear, the argument that there are no identifiable guidelines dealing with the responsibilities of advocates attending pre-hearing reviews, will not be available in the future.
As to the failure to show the parents' statements to Dr F, I have likewise come to the conclusion, contrary to the view expressed in my draft judgment, that in all the circumstances of the case it would not be appropriate to make a collective order for wasted costs against the Bar.
I reach the latter conclusion for several reasons. First, whilst I have strong views about the responsibilities of counsel conducting public law Children Act proceedings, the assurance from counsel for the children was volunteered, and could not be said to have derived from any specific or identifiable duty laid down in any manual of good practice.
This argument does not, of course, apply to counsel for the local authority, but I am confident that the fact of this judgment and her own sense of dismay at what had occurred suffice.
In addition, I have examined the court log, which shows that Dr F was called at 10.48 am. I adjourned at 11.09 am when it was discovered that she had not seen the parents' latest statements. The court resumed at 12.01 pm when Dr B was called. His evidence concluded at 12.52 pm. Dr F was recalled at 2.06 pm and her evidence was concluded by 2.38 pm.
In these circumstances I accept the argument put forward by counsel for the local authority and the parents that even if Dr F charges by the hour, the time actually wasted was de minimis and the situation was retrieved by the interposition of Dr B and the fact that Dr F concluded her evidence by 2.38 pm.
In these circumstances, I cannot be confident that there were any wasted costs in relation to the second error, and accordingly I do not make any order in relation to it.
The argument on wasted costs by counsel for the parents
There are two passages in the second set of submissions from counsel for the parents which I propose to rehearse since, once again, they seem to me to show a number of misapprehensions about the applicability of wasted costs orders to care proceedings. In the first extract, counsel submit:
'2.4. Applying the principles enunciated in Ridehalgh to the instant case, the following matters appear to us to be relevant to the court's consideration:
(1) the "litigant" who was caused a relatively small amount of "loss and expense" as the result of the procedural errors made, was the local authority. The head of legal services has already made a full apology to the court for the errors made by [the solicitor]. It is reasonable to assume that apologies will also have been offered to the doctors inconvenienced by the mistakes made. Any additional financial costs incurred by the doctors will be borne by the local authority.
(2) No court time was lost as the result of Dr M being asked to return to complete her evidence on a different day.
(3) The estimate for the case was 7-8 days. It comfortably finished within that estimate.
(4) The effect of Dr F needing time to read documents before she was cross-examined, was that circa 35 minutes of hearing time was lost.
(5) The detailed inquiry into the issue of whether or not wasted costs orders should be made occupied a whole afternoon (at least 2 hours of court time). In advance of that inquiry, counsel on all sides had been invited to submit representations in writing. In leading counsel's case, preparation of those representations took some 2½ hours.
(6) We are unaware of the extent to which any of the doctors has complained at the inconvenience to which they were put. We strongly
suspect that each of them was good enough to accept the apologies that have already been proffered by the Bar; would, as a matter of course, be magnanimous enough to accept that everyone is capable of making mistakes from time to time; and would not themselves be agitating for financial penalties to be exacted against the Bar.'
I propose to deal with counsel's para 2.4 seriatim:
(1) The fact that the additional costs incurred as a result of the need for Dr M to return to court will be borne by the local authority both misses the point and begs the question. If the additional costs were caused by the failure of counsel to follow good practice, the local authority's budget should not have to bear those costs.
(2) The fact that no court time was lost as a result of Dr M having to return because the time was filled by other evidence is irrelevant. The wasted costs were caused by the fact that she had to return.
(3) The fact that the case finished within its allotted time estimate is also irrelevant for the same reason as that given in (2).
(4) I accept that the fact that Dr F did not have to return on another day and completed her evidence by 2.38 pm means that the time wasted in court was de minimis. This does not, however, affect the first issue and does not address the point that it should not have been necessary for this to occur.
(5) I do not see the relevance of the time taken by counsel to prepare arguments on wasted costs. This may be relevant if counsel is seeking an order for costs against counsel for the local authority. They have, however, given me no indication that this is what they intend to do. I will return to this point in a moment.
In any event, I have already made the point that had both errors been met with immediate apologies and appropriate reassurances, the inquiry would not have been initiated.
(6) I find the language of this submission surprisingly emotive. The submission itself is irrelevant. If the suggestion is that I am myself 'agitating for' or am in some way bent on imposing financial penalties against the Bar, I reject it. I am simply concerned to see that proper professional standards are maintained and good practice followed.
In the second extract, counsel argue that wasted costs orders should not be made against any member of the Bar in the case. They put the matter in this way:
'9. The conduct of the hearing by other counsel
9.1. We made plain, in the written submissions prepared by leading counsel on 24 April 1999, that in all other respects the local authority's case had been conducted in a thoroughly professional way. There had been "complete and harmonious co-operation between the advocates at every stage" of the proceedings.
9.2. We remind the court of what was said in the Ridehalgh case in relation to judicial discretion:
"… the jurisdiction to make a wasted costs order is dependent at two stages on the discretion of the court. The first is at the stage of initial application, when the court is invited to give the legal representative an opportunity to show cause. This is not something to be done automatically or without careful appraisal of the relevant circumstances. The costs of the inquiry as compared with the costs claimed will always be one relevant consideration. This is a discretion, like any other, to be exercised judicially, but judges may not infrequently decide that further proceedings are not likely to be justified. The second discretion arises at the final stage. Even if the court is satisfied that a legal representative has acted improperly, unreasonably or negligently and that such conduct has caused the other side to incur an identifiable sum of wasted costs, it is not bound to make an order, but in that situation it would of course have to give sustainable reasons for exercising its discretion against the making of an order." (At 239D?F and 211E-G respectively.)
9.3. In our submission, there are good and sustainable reasons for declining to make orders against anyone in this case. We would urge the court to temper its sense of indignation with mercy.
The costs involved, if any, are likely to be trifling.
The costs of the inquiry now far exceed the costs potentially in issue.
Fulsome apologies have been made to the court by both the local authority legal department and their counsel, on more than one occasion.
"Making an example" of counsel who, in the opinion of the court, have acted in ways that fall short of the highest standards of competence, is not what the wasted costs jurisdiction is directed at.'
There are three points which seem to me to arise from this passage and I will take them in order.
(1) The discretion to make a wasted costs order
I have considered this very carefully. Of course, in deciding whether or not to exercise the power to make a wasted costs order the court will look at the conduct of the case overall, and if the specific conduct complained of is borderline, or does not fall easily within the principles laid down by the Court of Appeal in Ridehalgh v Horsefield, or if the 'heat of battle' argument applies, a wasted costs order is unlikely to be made.
Here, however, the 'heat of battle' argument is not advanced as a defence to the first error, which is acknowledged to be an elementary mistake. Leading counsel's description was that it was 'basic' and that it 'defied belief'. It was plainly an obvious breach of good practice guidelines. The fact that counsel for the local authority otherwise conducted the case competently in court does not, in my judgment, prevent the making of a wasted costs order in relation to it.
Of course everybody makes mistakes; and in my judgment there is no inconsistency in holding, as I do, that a specific error over a particular aspect of a case may give rise to a discreet issue of wasted costs, if the error falls within the relevant parameters.
(2) Making an example of counsel
I am not 'making an example' of counsel. This case is about good practice and the consequences for the Bar and solicitors if good practice is not adhered to. I am not making an order for wasted costs against the local authority solicitor because, on the facts of this case, I regard counsel, as the leader of the team having the carriage of the proceedings as primarily responsible. In other circumstances a solicitor is likely also to be liable.
(3) The costs of the inquiry
Leading counsel argues that 'the costs of the inquiry now far exceed the costs potentially in issue'. This proposition, in my judgment, is misconceived for several reasons.
The first is that the 'costs of the inquiry' result from the failure of counsel at the hearing properly to address the issue at the time it arose. Secondly, I do not propose to allow 'the costs of the inquiry' to be a burden on either the local authority's budget or the Legal Aid Board. There is no justification at all, in my judgment, for such costs to be taxed as part of counsel's fees in the case.
As my draft judgment made clear, I propose to direct that the final day of the hearing should be treated as an attendance for judgment only. I see no reason why the burden of counsel's attempts at exculpation should fall on public funds. The only alternative, in my judgment, would be to order that the 'costs of the inquiry' be paid by counsel for the local authority. That is not something, I imagine, that other counsel in the case would wish to happen.
Counsel's integrity
I reject leading counsel's argument, contained in her written submissions, that a wasted costs order against counsel for the parents in relation to the second error would impugn their professional integrity. The words in s 51(7) of the Supreme Court Act 1981 are 'improper, unreasonable, or negligent act or omission'. In my judgment, professional integrity is only impugned if the suggestion is that counsel has done something improper. There is no such suggestion in this case. As counsel point out, I congratulated them for their overall conduct of the parents' case.
The result
I make a wasted costs order against counsel for the local authority in the amount incurred by the local authority in securing the attendance of Dr M on 23 April 1999. The costs allowable to counsel and solicitors of the final day of the hearing will be limited to taking the judgment, and counsel's 'costs' incurred in making written submissions (assuming, that is, that counsel intended them to be included in their overall fees) will be disallowed.
Order accordingly.
PHILIPPA JOHNSON
Barrister
