Judge: MacDonald J
Citation:  EWHC 3322 (Fam)
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:
Following the handing down of judgment, the court had to determine the following costs applications on the papers:
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:
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:
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.
 Nicola having been involved in the case, she has not contributed to this case comment.