[2014] SCLIV3

Petitioners: Brabender

First Respondent: MacLeod

Second Respondent: MacFarlane

Livingston April 2014

The sheriff, having resumed consideration of the cause, finds no expenses due to or by any party to the cause; certifies Professor Furnell as a skilled witness; certifies the cause as suitable for the employment of Junior Counsel.

NOTE:

[1] By interlocutor dated 30 December 2013, after a ten day proof, I refused the City of Edinburgh Council's applications for permanence orders in respect of two children AB and CD. Their parents, the respondents, both now ask me to find the Council liable to them in the expenses of the action.

[2] The hearing on expenses took place before me at Livingston Sheriff Court on 13 March 2014. The parties were represented as at the proof, that is Miss Bradender, Advocate, appeared on behalf of the petitioners, Miss MacLeod, Advocate, appeared on behalf of the first respondent (the children's mother), and Mr MacFarlane, Advocate, appeared on behalf of the second respondent (the children's father). At the hearing Counsel for the first and second respondents each advanced a number of arguments in support of their position that expenses should be awarded in their favour. The arguments presented by each of the parties to the case were, in brief, as follows.

Submissions for mother

[3] Counsel for the mother founded, first (and perhaps foremost), on the general rule that expenses should follow success. She said that the petitioners had been wholly unsuccessful in their attempt to obtain permanence orders. She submitted that this was not a family action, where the traditional rule of expenses following success might not apply in its full rigour, but was an application by a local authority which was seeking to prevent the children being returned to their mother's care. Having been unsuccessful in the litigation, she argued, the Council should be found liable in expenses. Secondly, she submitted that if the approach to expenses as taken in many family actions might be considered relevant, then, under reference to the case of Liddle v Liddle 1990 SLT 785, at page 790, I could look to the conduct of the parties in deciding on expenses. In relation to this, she pointed out that the curator's first report dated 29 April 2013 (at paragraph "(B)") had highlighted the need for investigation into the mother's present circumstances, as it was clear even then that her situation had improved vastly. She submitted that the local authority had failed to carry out any investigations of the mother's situation in England, and that had they done so the action might not have been necessary.

[4] Further, in relation to the question of conduct, she suggested that had the local authority allowed the children to visit their mother in England (again as suggested by the curator at paragraph "H") then this might have resulted in a resolution of the case without a proof, or, at the very least, a reduction in its length if the question of contact had been agreed. She argued that there had been no effort by the local authority to engage with the parties' representatives in any discussion about contact. She argued that the local authority ignored the views of the Children's Panel, and of the curator, and set their face against any contact taking place in England. It was argued that had the local authority been more open to discussion then this might have brought about some resolution of the case.

[5] The mother's Counsel also urged me to accept that it was a relevant consideration that the failure of the action had resulted in public money having to be expended by the Scottish Legal Aid Board in terms of the legal aid certificates which had been granted to the mother and father. She argued that there was nothing special about this type of action which should operate to protect the local authority from the consequences of its failure to achieve success in the action. The respondents had been successful, and they were entitled to an award of expenses in their favour. As the local authority had chosen to bring the action, the respondents had no choice but to defend it, and if no award of expenses was made in their favour the burden of their expenses would fall on the Legal Aid Board. It was important that expenses were recovered for the Legal Aid Board where possible. This consideration outweighed any consideration relating to the fact that ultimately the costs of the action would fall on the public purse.

Submissions for father
[6] Counsel for the father adopted the submissions made on behalf of the mother, and also sought an award of expenses. He added a number of points of his own.

[7] He said that not only had the petitioners been unsuccessful in the action, he suggested that they had really been doomed to fail because of the substantial improvement in the mother's circumstances. The local authority's determination to proceed with the action in the face of poor prospects of success was a factor which had to be held against them in relation to expenses.

[8] In relation to the question of contact, he suggested that the Petition for the permanence order in relation to the father had to be read as being to the effect that the local authority were seeking a complete cessation of contact by the father. This was the result of the fact that the petition had no provision for contact at all in relation to the father, despite the fact that he was seeing the children very regularly prior to the action being raised. This meant that the father had no choice but to defend the action, and for legal expenses to be incurred. In this respect the father's position was different from the mother's.

[9] In relation to the conduct of the parties, he argued that the father through his agents had done everything possible to secure that the case was dealt with efficiently and expeditiously.

[10] He very fairly drew my attention to the fact that in children's hearing there is a statutory provision in terms of which awards of expenses against an unsuccessful party are not to be made, but argued that that was a particular legislative scheme which had no real relevance to the present action. The question of expenses was therefore one for the discretion of the court, subject to the principles which had been developed over the years in the reported decisions.

Submissions for petitioners

[11] Counsel for the petitioners argued that no expenses should be awarded to or by any party to the action. She referred me to Rule 2 of the Sheriff Court Adoption Rules 2009 as giving the source and extent of the court's powers in relation to expenses in adoption and permanence cases. That power, as provided by the Rule, was simply that the Sheriff may "make such order as he thinks fit" with regard to the expenses of a permanence order application.

[12] Counsel for the petitioners submitted that this rule gave the court wide discretionary powers, and that the ordinary rule of expenses following success did not apply in a case of this nature. She suggested that the only authoritative decision on the question of expenses in a case like this was the case of Dumfries & Galloway Council, Petitioners 2003 Family Law Reports 95, a case decided under the predecessor of Rule 2. In that case even though the parents had been wholly successful the decision on the question of expenses was that there should be no expenses due to or by either party. Counsel suggested that this was an indication of the likely award of expenses in many, if not most, cases of this nature.

[13] Counsel for the petitioners suggested that the essential questions which I had to look at were, first, whether the petition had been brought responsibly, and, secondly, the nature of the conduct of the litigation by all parties.

[14] She argued that the local authority had acted entirely responsibly in bringing this application for permanence orders. In relation to this she founded on the fact that all local authorities are under a duty to safeguard the interests of children: sections 16 and 17 of the Children Act 1995. She founded further on the well-established view that where children have been separated from their parents it is in their best interests that decisions as to their future are taken as quickly as possible. This meant that proceedings ought to be brought if children have been accommodated for any length of time. Here, the children had been accommodated since 2007, some five and a half years prior to the raising of the action. It was, moreover, the view of experienced social workers involved in the case that the children had been damaged by their upbringing, and it was therefore important that proceedings were brought and taken to a conclusion as expeditiously as possible. The local authority had been obliged by the legislative provisions to obtain the advice of the Children's Hearing as to the children, and that advice supported the granting of a permanence order.

[15] In relation to the question of contact, she pointed out that the mother and father were in a very different position, in that the mother had full parental rights, but the father had no such rights (by virtue of falling under the law as it previously existed). The father therefore had no right as a matter of law to have contact with the children, and it was not therefore possible to draw the conclusion that because the petition was silent with regard to contact by the father this meant that the local authority was seeking to remove his right to see the children. It simply meant that the local authority was content for the de facto position to continue, that is, that in relation to the father contact would remain at the discretion of the local authority acting though their social work department. Moreover, she said that despite repeated requests at pre proof hearings to be told what the father sought by way of contact, his position was not made clear until immediately before he gave evidence. His answers did not have a crave for contact, at least initially, nor did they contain any positive assertion as to what contact would be in the children's interests.

[16] Regarding the way in which the parties conducted the action, Counsel for the petitioners submitted that the local authority had complied with the practice directions which sought to achieve expeditious disposal of an action of this nature. They had lodged productions in advance. They had made available documentation which the respondents had requested, even although that documentation was voluminous and had not been referred to by the respondents at the proof. They had lodged lengthy affidavits before the proof in an effort to cut down the amount of evidence required. They had canvassed the question of expert evidence at pre proof consultations, and they could not complete their own preparations until they had received the report from the mother's expert, Professor Furnell, which was not lodged until the day before the proof commenced. They had prepared a lengthy Joint Minute which had cut down the time taken for the proof, and had involved considerable work.

[17] Regarding whether it had been reasonable for the Council to have raised the action, there had been no criticism in my written judgement of the evidence given by any of the petitioners' witnesses. This was a difficult case where it could not be said that the local authority were even likely to fail. Counsel for the petitioners pointed out that I had reached my decision "with hesitation".

[18] Counsel for the petitioners also suggested that in the vast majority of cases of this nature the outcome in relation to expenses was that there was a finding of no expenses due to or by. She argued that I could not exclude as irrelevant the fact that ultimately the costs of this litigation would fall on the public purse, and therefore it was to some extent a technical exercise to find one party or the other liable in expenses.

Decision
[19] The general principles governing the award of expenses are dealt with at paragraph 19.07 of Macphail on Sheriff Court Practice, 3^rd Ed. There, excerpts from two judgments are given as showing the "general rules in awarding expenses". These excerpts are as follows:

"An award of expenses according to our law is a matter for the exercise in each case of judicial discretion, designed to achieve substantial justice, and very rarely disturbed on appeal. I gravely doubt whether all the conditions upon which that discretion should be exercised have ever been, or ever will be, successfully imprisoned within the framework of rigid and unalterable rules, and I do not think that it would be desirable that they should be ..." (Howitt v Alexander & Sons 1948 SC 154, per Lord President Cooper at 157.)

"The principle upon which the court proceeds in awarding expenses is that the cost of litigation should fall on him who has caused it ... In some cases, however, the application of the general rule would not carry out the principle, and the court has always, on cause shewn, considered whether the conduct of the successful party, either during the litigation, or in the matters giving rise to the litigation, has not either caused or contributed to bring about the law suit." (Shepherd v Elliot (1986) 23 R 695, per Lord President Robertson at 696.)

In Macphail it is also said that in "straightforward and uncomplicated cases, the successful party is usually entitled to his full expenses as taxed".

[20] The first point to make is that this was not a "straightforward and uncomplicated" case. It was a very difficult and anxious case where I heard evidence from experienced social workers which I found to be "quite powerful". In the end that evidence did not persuade me to make the orders which the petitioners sought, but it was "not without hesitation" that I reached the conclusion that permanence orders should not be granted. I do not think that it could ever be said that this was an action the outcome of which was so obvious that it was doomed to fail, and probably not even one which was likely to fail. While I remain of the view that the petitioners had an uphill battle to persuade me to grant the orders, the relevant considerations were complicated and in my view quite finely balanced, and the petitioners did not fall all that far short of winning that uphill battle. Although the petitioners were unsuccessful, the fact that the case was, in my view, difficult and finely balanced, weakens the argument that expenses should follow success.

[21] I also agree with the submission made by counsel for the petitioners that one important question to be looked at in deciding on expenses in a case of this kind is whether the petitioners acted responsibly in bringing the action. Their decision to raise proceedings was based on the views of experienced social workers, and I think that it is very important that I reached my decision that their views were not to be preferred only after their evidence, and all the other evidence, was explored in great detail at a ten day proof. Another important factor in relation to the outcome of the case was the evidence of Professor Furnell, the expert who was led as a witness for the mother. His evidence, which weighed quite heavily in my decision, was not available to the petitioners at the time the action was raised. It was, to quite a large extent, his evidence which persuaded me not to follow the recommendations of the social work witnesses. The petitioners did not have that information available to them at the time they decided to raise the actions. Given the statutory obligation upon local authorities to act in the best interest of children in their care, given that quick decisions regarding the future of such children is usually in their best interests, and given that the local authority was receiving powerful advice from experienced social workers that permanence orders were in the best interests of the children, it seems to me that it cannot be said that the local authority acted in anything other than an entirely responsible manner in bringing the present proceedings.

[22] I also agree with the submission made by counsel for the petitioners that the conduct of the parties is also a relevant consideration in deciding upon expenses. That submission is supported by the quotations from the cases to which I have referred above.

[23] All parties made exemplary efforts to comply with the practice notes which govern the conduct of an action such as this. Efforts were made on all sides to focus the issues. The petitioners prepared, at no doubt considerable time and effort, lengthy affidavits for their witnesses. A lengthy Joint Minute was entered into, thereby restricting the scope of the evidence. Written submissions were prepared by all parties. The petitioners made available voluminous documentation at the request of the respondents, which no doubt took many hours to organise. There can be no criticism of anyone in this respect.

[24] The respondents argue that the petitioners' unnecessarily prolonged the proof by seeking at the outset of the proof to limit severely the contact which the children's mother might have with the children. I would agree that it was somewhat unfortunate that at the outset of the case the petitioners' formal position regarding contact by the mother as stated in the petition was very different from their position at the end of the proof. However, the petitioners' position at the commencement of the proof reflected, as I understand it, the views of professionals involved with the family, and I do not therefore think that any real criticism can be made of the petitioners in relation to the stance which they initially adopted. Their position was revised as other evidence was heard.

[25] It is also argued that if the petitioners had allowed the children's mother to see them in England prior to the proof commencing, even on a small number of occasions, then this is something which might have led to some agreement about contact, and thereby might have lessened the length of the proof. While the Children's Panel and others argued for such contact to take place, I do not think that the petitioners can face any real criticism for adopting the position which they did. The social workers, for reasons which they expressed in evidence, were of the view that contact with the children in England would be detrimental to the interests of the children, and latterly the Council also had that advice from their child psychologist. In these circumstances the decisions faced by the council as to whether or not to agree to contact taking place in England was a very difficult one, and I do not think that they can face substantial criticism for deciding as they did. These decisions are very difficult, and just because I ultimately did not prefer the views of the social workers on this point does not mean that the petitioners' decision at the time it was taken can be said have been the wrong one.

[26] There was also criticism advanced against the petitioners that they had failed to carry out any form of assessment of the children's mother in England. Again, while it might have been helpful for me to have had such evidence, I do not think that any substantial criticism can be made of the petitioners in this regard. The children's mother did not move to England until March 2012. The present proceedings were raised in February 2013. The mother's life had been so chaotic prior to the move to England that it is difficult, in my view, to blame the petitioners for not trying to follow her there to carry out further assessment. It would take some time for information to emerge and make its way back to the petitioners as to the fact that the mother's circumstances seemed to be improving. There was, for instance, still social work involvement with the children's mother when her child EF was born in June 2012.

[27] The remaining factor which I require to consider is whether the fact that the expenses of this action will ultimately fall to be borne by the public purse should be relevant to any decision on expenses. In my view it has to be regarded as a relevant factor, albeit not a determining one. If a local authority, or other public body, has raised proceedings irresponsibly, or has conducted them in the same manner, then even where ultimate liability may lie with one department or another of the public sector, it may well be right to find the party responsible for raising the proceedings, and causing the expense, liable in expenses. But where, as here, I have come to the conclusion that there is no substantial criticism to be made as to the decision to bring the proceedings, and no criticism of any real nature in relation to the conduct of the proceedings, then it must surely be a relevant factor that regardless of where any liability for expenses lies, ultimately it is the public purse which will have to meet that liability.

[28] For all these reasons I have reached the conclusion that the appropriate finding in expenses is that there will be no expenses due to or by any party to the cause.

[29] I am asked by the mother to certify Professor Furnell as a skilled witness. There was no opposition to this, and I so certify. I was also asked by the parties to certify the cause as suitable for the employment of junior counsel. As I understood it this view was unanimous, and in any event, I have no hesitation in such certification.

[30] Accordingly, in relation to expenses, there will be no expenses due to or by any party to the cause; Professor Furnell is certified as a skilled witness; and the case is certified as suitable for the employment of junior counsel.

Sheriff Douglas A Kinloch