Council faces £210k bill after "blatantly unlawful" conduct over freeing orders

Mr Justice Peter Jackson’s costs ruling followed his declaration last year – under the Human Rights Act – that Lancashire County Council and an independent reviewing officer had breached A and S’s rights under articles 8, 6 and 3 of the European Convention on Human Rights.

The two boys had been subject to freeing orders in favour of the county council but were never adopted.

The judge discharged those orders in his ruling of 21 June 2012. He also called for a nationwide review of cases where children remain under unsuccessful freeing orders or placement orders.

A costs statement in the sum of more than £210,000 was subsequently served on behalf of A and S. However, no costs order was sought against the IRO.

In A and S (Children) v Lancashire County Council [2013] EWHC 851 Mr Justice Peter Jackson said: “I accept the submission of LCC [Lancashire County Council] that these are family proceedings to which the FPR [Family Procedure Rules] apply. I therefore approach the matter without applying any general rule that costs follow the event, but seeking to make an order that is just, as required by FPR 28.1.

“I do not accept the submission of LCC that the only conduct to which the court can have regard under 44.5(4)(a) is litigation conduct. If this were the case, a party to family proceedings who had behaved reprehensibly for years could escape a costs award by being sure to behave impeccably once the litigation for which they were responsible had begun.”

The judge said that while he accepted the submission that the ongoing welfare orders for the boys were the court's most immediate concern, he pointed out that the litigation efforts (and hence the costs) were overwhelmingly focussed on the history of their time in care.

Mr Justice Peter Jackson said: “Although the parties have devoted considerable effort to arguing about costs, this reflects the sums involved and not the complexity of the argument. In fact, the matter is quite simple. In normal circumstances, an application by a local authority to discharge a freeing order or a placement order will not lead to any consideration of a costs order against it.

“However, in this case LCC's conduct in relation to these boys over many years was blatantly unlawful and unreasonable (as both it and the IRO have accepted) and led inexorably to substantial litigation. The extensive period of the default meant that the amount of material to be analysed was itself extensive, and the time necessary to analyse it was correspondingly long. LCC having handed over its archive, it fell to those representing the boys to make sense of it, with little if any original insight coming from LCC itself, as opposed to from the IRO.”

The judge said he therefore had no hesitation in finding that the council’s conduct in this case had been unreasonable to the extent that it should pay the boys' costs.

He added that he included in this the costs of the costs argument, where the applicants had succeeded in the result, even if not in every legal submission.

“The impact on LCC's budget is extremely regrettable, but there is no good reason why the Legal Services Commission should subsidise substandard behaviour of this kind by another public body,” Mr Justice Peter Jackson said.

However, the judge said the facts of the case did not merit the additional penalty or stigma of an award on the indemnity basis. “That conclusion would almost certainly have been different had LCC not cooperated in the litigation process to the extent that it did.”

Mr Justice Peter Jackson acknowledged Lancashire’s “understandable concern” at the high level of the costs, and ordered that the costs be subject to a detailed assessment on the standard basis.

A Lancashire County Council spokesman said: "We are not going to appeal the decision but, as the costs were not made on an indemnity basis, we will be attempting to minimise and reduce that figure by negotiation or, if necessary, by means of a detailed assessment of costs."