Barts NHS Foundation Trust v Begum and Raqeeb, and Raqeeb (by her children’s guardian)



Judge: MacDonald J

Citation: [2019] EWHC 3322 (Fam)

Summary[1]

This is the costs decision in the case concerning the medical treatment and best interests of Tafida Raqeeb, a five year old girl (‘Tafida’). We reported on the substantive proceedings in an earlier report, but to recap, the court had before it two sets of proceedings in the substantive application:

  1. An application by Tafida for judicial review of the decision by the Trust not to agree to her being transferred to a hospital in Italy for continued medical treatment pending the determination of an application to the High Court for a declaration regarding her best interests. The Court held that that the decision of the Trust was unlawful but declined to grant relief to Tafida.
  2. An application by the Trust for a specific issue order pursuant to s. 8 Children Act 1989, and an application for a declaration pursuant to the inherent jurisdiction of the High Court, that it was in Tafida’s best interests for her current life-sustaining treatment to be withdrawn, a course of action that would lead inevitably to her death. That application was dismissed.

Following the handing down of judgment, the court had to determine the following costs applications on the papers:

  1. That the Trust should pay Tafida’s costs of the judicial review proceedings on the basis that as a successful claimant costs should follow the event. Tafida’s representatives also relied on the conduct of the Trust during the proceedings in support of her application for costs, including that it was unreasonable of the Trust to argue that it had not made a decision that was susceptible to judicial review.
  2. That the Trust should pay Tafida’s costs in the Children Act 1989 proceedings.
  3. The parents sought their costs in the Children Act proceedings only, on the basis that the proceedings engaged the core Article 8 rights of the parents, and so there would be an unacceptable inequality of arms (a core principle of Article 6) as between the parents and the State if the parents did not recover their costs in circumstances where:
    a. the parents were required to respond to the proceedings instituted by the Trust, and
    b. where the proceedings concerned the life of their child and there was no non-means tested public funding available (unlike for parents on public law family proceedings).

The parents also relied on the conduct of the Trust during the proceedings as a further reason why their application for costs should be granted, including that it was unreasonable on the part of the Trust to assert that the parents had at some point consented to the withdrawal of Tafida’s treatment.

The Trust’s position was that in each set of proceedings the parties should bear their own costs. The Trust submitted that:

  1. Tafida’s application for judicial review was part of a calculated campaign seeking an anterior procedural ruling to obviate the need for any decision by the Family Division as to her wider best interests or to defer such a decision until Tafida was a patient in the hospital in Italy.
  2. Tafida could not be considered to be the successful party in the judicial review proceedings as she had not avoided the need for a best interests decision being made by the Court and she had not been granted a remedy in the judicial review proceedings.
  3. There were important policy reasons why the usual order for costs in welfare proceedings is no order for costs, including that:
    a. Trusts will be deterred from making applications of this nature by the inevitable tension that will arise (in already difficult circumstances) between their safeguarding obligations in relation children who are not deriving benefit from life sustaining treatment and the duty to fund the treatment needs of all patients.
    b. To grant such an application would have a chilling effect in that those children most in need of a judicial determination of their finely balanced best interests will be the children in respect of whom a Trust will be reticent about risking the cost consequences of a best interests application before the court.

The Trust also noted that the parents’ legal costs were funded by a Gofundme campaign, and that they had been properly represented before the court, thus the Trust submitted, as a matter of fact, there was no inequality of arms.

MacDonald J held that Tafida was the successful party in the judicial review proceedings despite not being granted a remedy. He therefore saw no reason for disapplying the ordinary rule that the unsuccessful party should pay the successful parties costs. Accordingly, he awarded Tafida 80% of her costs. The 20% discount was to take account of the unsuccessful argument she ran concerning article 5 of the ECHR.

MacDonald J declined however to make an order in favour of the parents in relation to their costs of the Children Act proceedings. Despite acknowledging that the parents had succeeded in persuading the court to adopt a conclusion consistent with their articulation of what was in Tafida’s best interests, he found that the refusal to make a costs order in the parents favour would not result in unacceptable inequality of arms as between the parents and the State in breach of Article 6 of the ECHR even where the proceedings engaged the core Article 8 rights of the parents.

Of considerable significance in this conclusion was that, as a matter of fact, there had been no inequality of arms in the proceedings. The parents had the benefit of a highly experienced team of solicitors and were represented by specialist leading and junior counsel throughout the hearing. The time for making this argument, the judge held, would have been ‘before the final hearing, supported by evidence that the parents would not have the benefit of legal representation unless a species of costs funding order was to be made.’  The judge noted that even then, such an application would have faced considerable hurdles.

MacDonald J acknowledged the apparent inconsistency in the approach to public funding as between a parent who is facing care proceedings concerning the welfare of their child brought by the State, in the guise of the local authority, and a parent who is facing proceedings brought by the State, in the guise of an NHS Trust, but stated, rightly, that this is a matter for Parliament:

To make an order for costs against a public body simply to remedy the fact that Parliament has not provided for public funding in the circumstances in question would be impermissible unless such a costs order is justified on ordinary principles in the particular circumstances of the case. It is not for the court to fill a lacuna by making a costs order against an NHS Trust where there is otherwise no principled basis for such an order on ordinary principles.

Applying ordinary principles, MacDonald J concluded that:

  1. The trust had no option but to bring the proceedings for a best interests determination by the court in light of the disagreement between the parents and the clinicians.
  2. The consequence of making a costs order in favour of the parents would be to deter Trusts from bringing applications in the future and give rise to the risk of situations, where the parents have secured private funding for all treatment, to depart from medical opinion and to prefer the fully funded position of the parents, which preference avoids the costs risk. The consequences of these risks being that they would affect “the children most in need of a judicial determination of their best interests, namely those where the decision is a finely balanced one and therefore where the ‘litigation risk’ presented by proceedings that put the Trust at risk of costs concomitantly higher.”
  3. Lastly the fact that the parents had raised a considerable sum of money for their legal costs made the court still less inclined to risk the disadvantages of departing from the ordinarily approach.

Comment

Insofar as to it relates to the inherent jurisdiction proceedings, this decision will no doubt be very welcome news to Trusts up and down the country as budgetary pressures get ever more significant. While this case is not concerned with proceedings in the Court of Protection, the analysis of the costs application in the Children Act proceedings are equally relevant to cases brought in the Court of Protection in relation to adults. The observations that MacDonald J made about the responsibility lying with the public body to bring proceedings in the case of dispute are equally applicable to cases involving medical treatment in relation to those (potentially) lacking capacity for purposes of the MCA 2005.

[1] Nicola having been involved in the case, she has not contributed to this case comment.

CategoryFamily (private law), Family (public law) Date

Keywords


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