Legal Update
Spring 2011

Article 1 - Costs Applications In Fact Finding Hearings - Justine Gayford

In the current financial climate it is perhaps more important than ever to consider an application for costs in appropriate cases after a fact finding hearing has taken place.

Of course it is well known that in proceedings brought under the Children Act 1989 it is rare for an order for costs to be made due to a general proposition of no order as to costs. This general proposition is due to the "...Court not wanting the spectre of an order for costs to discourage those with a proper interest in the child from participating or reducing the chances of a parties co-operation around the future life of the child by casting one as the successful party entitled to his costs and another as the unsuccessful party obliged to pay them. The proposition applies in its fullest form to proceedings between parents and other relations; but it also applies to proceedings to which a local authority is a party... But this proposition does not apply where, for example, the conduct of a party has been reprehensible or beyond the band of what is reasonable." As held in the case of London Borough of Sutton v Davis (Costs) (No 2) [1994] 2 FLR 569.

However, the decision in J (Children) [2009] EWCA Civ 1350, suggested an exception to the general proposition stated in Davis in relation to bespoke fact-finding hearings.

Where a separate fact-finding hearing has been deemed necessary to determine whether and to what extent allegations made by one party against another party are true, the fact-finding hearing is distinct from the issue of costs in the general application itself, whether this be for residence, contact or indeed care proceedings. Therefore, there is, " that sense, a ring fence around that hearing and thus around the costs referable to it".

The court should consider the nature, seriousness and relevance of the allegations; the extent to which they were admitted and beyond that which is admitted, the extent to which they have been found proved.

The issue of costs in a fact-finding hearing in care proceedings was considered recently in T (A Child) [2010] EWCA Civ 1585. In that case grandparents had incurred considerable expense in successfully defending allegations of sexual abuse brought by the local authority. Lord Justice Wilson considered that "...where in care proceedings a local authority raise, however appropriately, very serious factual allegations against a parent or other party and at the end of the fact-finding hearing the Judge concludes that they have not established them, the general proposition is not in play." This does not mean costs will automatically be made as the rule of costs following the event does not apply either. The Judge should start with a clean sheet. Lord Justice Wilson reiterated his argument in Baker v Rowe [2009] EWCA Civ 1162, that "...even where the judge starts with a clean sheet, the fact that one party has been unsuccessful, and must therefore usually be regarded as responsible for the generation of the successful party's costs, will often properly count as the decisive factor in the exercise of the judge's discretion."

He considered that in T (A Child) the "...facts that the grandparents were faced with allegations of the utmost severity, that accordingly it had been reasonable for them to stretch their economy to the utmost in order to secure for themselves a professional defence against them and that in the event the result was an exoneration, were all matters which should have been of great, indeed...decisive, importance to a judge who was about to write on a clean sheet."

Article 2 - Know Your Case... Or Even Policy! - Antonietta Grasso

Section 218A of the Housing Act 1996, requires a social landlord to prepare a policy in relation to anti-social behaviour ("ASB") and procedures dealing with the occurrence of such behaviour. A landlord is required to publish such a policy and made available for inspection to tenants or their solicitor. Any actions taken by the landlord with acts of ASB should be in line with the policy. On too many occasions, housing authorities react to acts of ASB without consulting its very own policy and procedure: ASB injunctions and possession proceedings are issued without a second thought to reasonableness and proportionality. Unfortunately these more often than not have a detrimental effect on those vulnerable persons.

In the case of Barber v Croydon LBC [2010] EWCA Civ 51, it was argued that the local authority had pressed ahead in breach of the local authority's own policy on vulnerable people without consulting the Integrated Mental Health Service or other agencies on whether anything less than eviction would solve the problem when it sought possession of a flat based on a single act of ASB by a disabled person. At paragraph 44 of his judgment, Pattern LJ, held: "Judged that by any ordinary standards, the assault on the caretaker was serious and obviously unacceptable. But the Council's policy on vulnerable people is to explore alternative solutions which may lead to the prevention of ASB in the future. Although there may be cases where the risk of future ASB by such a tenant is unlikely to be countered by anything less than their removal, the requirement to consult the specialist agencies is likely to ensure that the recovery of possession is confined as a remedy to cases where it is actually necessary in order to prevent a repetition of such behaviour "having regard to [the] assessment of him, it was, I think, incumbent upon Mr Hunt [the Council's ASB Team Manager] to consult the other agencies and to take advice as to whether some alternative remedy such as an ABC would solve the problem. As I read it, the Council's policy is not (and certainly ought not to be) that incidents of ASB involving persons with mental disabilities should be handled without regard to the existence of those disabilities and their responsibility for the conduct in question."

The local authority had treated the case as if its policy on vulnerable persons did not apply. It was held that Barber had established a public law gateway (b) defence of the local authority's decision to exercise the legal right to seek possession of the flat was one which no reasonable person would consider justifiable (Kay v Lambeth LBC [2006] 2 AC 465, applied). The possession order was therefore set aside.

The ASB policy or procedure is there to be followed. It is astounding how little of it, if any, across many authorities, is actually implemented before draconian and disproportionate actions are taken.

My view is to request a copy of the landlord's policy and procedure; and put it to the test!

Article 3 - The Personal Injury Time Bomb! - Carol Davies, David Pugh

Time limits for issuing a claim for damages in personal injury are set out in s11 of the Limitation Act 1980 ("the Act"). It is ingrained in our psyche that a claimant has three years to issue a claim, and the claim must be served within four months of issue. It is not unknown, however, for the time limits to be missed. The recent conjoined appeals of Aktas v Adepta; Dixie v British Polythene Industries plc [2010] EWCA Civ 1170 provides those who find themselves in the unenviable position with some solace.

The Act itself does offer a "get out of jail card" with s33 providing the Court discretion to displace the time limit. Mrs. Aktas issued her claim on the last day of the limitation period and served the claim one day late and the claim was struck out. Mrs. Aktas issued another claim and another application for strike out was made, on the basis that the reissue was an abuse of process.

The Court of Appeal reversed the decision of the lower court ruling that the second claim was not an abuse of process. The court considered that the failure of the claimants' solicitors to serve in time (rather than the claimants themselves) distinguished the case; further the defendants had admitted liability and the claimants had acted promptly in making the application to the court. The court considered the balance between the potential prejudice to the defendants versus the penalty of a claim sunk by a ‘slight' procedural error on the part of the claimants' solicitors. The court decided a mere negligent failure to serve a claim in time for the purposes of CPR, r7.5 and r7.6 was not an abuse of process. Something more than a single negligent oversight in timely service was required.

The court clearly considered that the penalty for late service of the first claim (i.e. the cost consequences in the claim failing) sufficiently balanced the equation and that the claimants should not be barred from a second claim when their first had been ‘sunk before it launched'.

The court was clearly anxious to do justice to the parties taking the view that the defendants had admitted liability and were trying to evade the claim by capitalizing on a minor procedural error by a solicitor. The defendants have not appealed the decision making the case a helpful tool to clear up the mess when the bomb explodes!

Article 4 - Radmacher Radical Or Repetition? - Derek Marshall

In a light-hearted article in a previous newsletter I speculated that the Supreme Court was unlikely to make major changes to the law of pre-nuptial and post-nuptial agreements in their long awaited decision in Granatino v Radmacher [2010] 3 WLR 1367. We now have that report and it changes everything we know about ancillary relief: It also changes nothing. Insofar as the case makes new law, we have the majority decision of the court, that "..the old rule that agreements providing for future separation are contrary to public policy is obsolete and should be swept away" and that "this should not be restricted to post-nuptial agreements. If parties who have made such an agreement, whether ante-nuptial or post-nuptial, then decide to live apart, we can see no reason why they should not be entitled to enforce their agreement".

Lady Hale, a former Law Commissioner gave a dissenting judgment in which she disagreed with the view that ante-nuptial agreements should be regarded as legally enforceable contracts, thought that it was not open to the court to hold that they were and disputed the conclusion that in policy terms there were no relevant differences between agreements made before and agreements made after a marriage.

She is plainly right about the last point, and it is difficult to fault her logic that these are all matters properly for the Law Commission followed by legislative intervention. However, as she rightly says the conclusions of the majority, which so radically change the law, were "mercifully" obiter to the decision itself, which concluded that the court could take into account (and in a proper case and subject to safeguards such as there being no "unworthy" conduct) only take into account, the agreement which the parties had themselves entered into either prior to the marriage or as part of the arrangements for their parting.

How does this differ from the existing legislation, which requires the Judge to take into account "all the circumstances of the case"? How does it change the common law position, as exemplified in the famous passage in Edgar [1980] 1 WLR 1410 where Lord Justice Ormrod sets out the sort of conduct which might vitiate a post-nuptial agreement but says that it is important that parties should not be allowed to go back on a properly constituted agreement without good reason? In my view, not at all. The court is still going to examine these agreements with great care to see that they have not been forced on the weaker party, that they are not intrinsically unfair (even if different from the solution the court may have imposed) and that they have not been overtaken by events. For almost all but the very richest litigants before the family courts the Radmacher decision makes no practical difference and the Supreme Court has therefore also changed nothing!

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