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Wasted Costs Orders in Care Proceedings

Courts tighten the grip on non-complying parties

Wasted Costs Orders in Care Proceedings

By Laura Harrington

Review of Re L (Case Management: Wasted Costs) [2016] EWFC 8B

These proceedings concerned a young boy who had suffered injuries whilst in the care of his parents. The matter was listed before His Honour Judge Bellamy for a two day fact finding hearing. At this hearing the Judge adjourned the fact finding and considered whether or not to make a wasted costs order against all or any of the parties.

At the first case management hearing the order made provision for the local authority to serve copies of the child’s health visitor, GP, and hospital records ‘to include any images’ and for the police to disclose to the local authority ‘witness statements, interviews, photographs and medical reports in respect of the injuries’.

It became apparent just days before the fact finding hearing that the local authority had not been provided with the medical photos, the audio recordings and or transcripts of the parents’ police interviews and as such these had not be served on the parties.

His Honour Judge Bellamy considered the recent authorities which have emphasised the obligation to comply fully and timeously with case management orders and the likely consequence of failure to comply.

Whilst he found the local authority were at fault for failing to ensure all disclosure had been provided by the third party; he was clear that the other parties also have a responsibility and duty to consider the disclosed material and satisfy itself that the disclosure complied with the case management directions and further identify any document or category of document that appears to have been omitted and inform the parties and court of such an omission.

 

In this instance His Honour Judge Bellamy was satisfied the responsibility for the failure identified rested primarily with the local authority however, the solicitors for the parents and the guardian also had some responsibility.

His Honour Judge Bellamy then went on to consider whether to make a wasted costs order. He found the local authority was negligent in failing to take appropriate and timely steps to obtain and disclose the audio recordings and to obtain and serve the parents’ police interview transcripts.  He was equally satisfied that the other parties were negligent in failing to identify this omission and in failing to take a pro-active response in drawing the omission to the attention of the local authority and the court. As a result, wasted costs orders were made against all four parties.

This case is unusual, in that wasted costs orders were made against all parties and consideration was even given to limiting the costs received by the solicitors for those parties in receipt of public funding.  In my opinion this case is a clear warning to all parties involved in family proceedings that the court is becoming firmer and is willing to consider severe consequences for parties’  non compliance with court directions. All parties should have this case in the forefront of their mind when dealing with cases involving disclosure from third parties , in particular, when large amounts of disclosure is requested from a third party who could easily omit certain documents in error.  This case emphases the need for parties to have constant consideration to directions and non-compliance as failure to do so may lead to the court finding fault at your door.