Costs based on District Court rules awarded against CCLRP in documents application; Judge regrets no state funds available for such applications

[As these proceedings related to the interpretation of the child Care (Amendment) Act 2007 and did not contain any details relating to the circumstances of the family which prompted the application for documents, there was no reason for preserving the anonymity of the judge and lawyers in the case. The report of these proceedings is published in the Archive of the CCLRP, Case Histories 2015, Volume 3, number 8, “Social work reports are not ‘relevant court documents’”.]

The costs of the legal representatives of the parents in an application for access to documents produced during child protection proceedings were awarded against the Child Care Law Reporting Project in the District Court.

However, in making the ruling, the President of the District Court, Judge Rosemary Horgan, said that, given the public interest nature of the application, it was extraordinary there was no state fund available to assist the CCLRP. This was deeply regrettable, she said.

The Child and Family Agency and the guardian ad litem (GAL) did not seek their costs against the CCLRP.

Earlier counsel for the parents, Hugh Murphy BL, instructed by Cahir O’Higgins, said that costs relating to one aspect of the proceedings had been resolved with the Child and Family Agency and discussions on other aspects were on-going. In relation to the documents of the case, the lawyers had mistakenly thought that the CFA would indemnify the CCLRP. Mr Murphy said that the costs now fell squarely on the CCLRP. He said the case was “truly exceptional”, and thus fell under the Supreme Court ruling on costs. Outlining the history of the costs application, he said they were not seeking their costs for the period when they were not on record, and added: “It is not my preference to seek my costs against Dr Coulter.”

Noeline Blackwell of FLAC, for the CCLRP, said that the parents’ solicitor was looking for costs in excess of €35,000 against the CCLRP. The application for documents was a supplemental matter to the main proceedings, so we would object to the claim it was of an exceptional nature. “Supplementary applications are made all the time,” she said.

“The CCLRP is a public interest law project. The need to make this type of application arose because the court directed that if documents were sought, it should be through a formal application. The project is limited in time and in money. It has been sanctioned by the State.”

She added that there was no certification for counsel for this aspect of this case. “For most of this case the parents either did not give instructions or were neutral. There should be no costs for those occasions where the legal team had no position or no instructions. We do recognise there was a need for a consultation with the mother, but there was no participation in the proceedings. In relation to the quantum, there is double counting.”

She added that during the time the Legal Aid Board was on record for the parents they made submissions, but these were withdrawn.

The CFA said that the agency was not indemnifying the CCLRP.

The judge said she needed clarity in order to reach a decision. To a certain extent this was an inquiry. The reality of the matter was that the GAL was paid by the CFA. The GAL had made submissions. “It is not as clear-cut as you think,” she said. She said she would like the GAL to be contacted prior to making her ruling. The matter was adjourned.

When the case resumed a month later Mr Murphy, for the parents, reiterated that they were “taken off guard” by the fact that their costs should be sought against Dr Coulter and the CCLRP. The application of the CCLRP and the extensive hearing of it were exceptional and the judgment could be of assistance in the future public interest.

Judge: “So, the application raised a public interest issue?”

Mr Murphy: “Yes, there was an interpretation of a statutory provision that can be far-reaching. Ms Blackwell made the point that the parents had little to do with the hearing and we resist that. Their views were brought to court and all aspects of the hearing were explained to them to that they understood.”

Judge:  “So you are seeking costs for your involvement in this application?”

Mr Murphy: “Yes, for all appearances and consultations but not for the duration which the Legal Aid Board was appointed on behalf of [the parents].  We are not seeking quantum at the moment although we are seeking an order for costs where we can discuss the issue. If there is no agreement, then it can be determined at a later date before the court.”

Asked if they had considered the District Court rules in relation to the scale of costs, he said: “We have measured our costs against a standard benchmark that is used by the Child and Family Agency.”

Judge: “But what about the rules that apply to the scale of costs in the District Court?”

Mr Murphy: “We are not seeking a measurement of costs here but an order for the parties to agree on costs and if there is no agreement then it will be a matter for court again.”

Ms Blackwell said: “This application was a novel one done by a novel project that does novel work. The CCLRP is also a limited project and it is about three and a half years into its five- year tenure. It was most useful that an application be made in relation to the extent of reporting in these cases and it actually showed a gap here in relation to private versus public [family law] reporting and the access to documents on the court file.

“In this case, the involvement of the parents was limited and their instructions were limited although it was important that they were heard.  The project understands that by bringing an application to court there is exposure to costs.  This application raises a substantial public interest and the project has accomplished their aim by reporting on how the law works in these cases.

“We have not sought any costs that we have borne against anyone. The CFA and the parents have remained neutral throughout but we accede to the fact that a consultation with the parents was required in relation to the issue of identification.”

She said that, in relation to the quantum of costs, it was not proper for the parents to be claiming costs apart from the amount claimed for appearances. The case was important for the administration of justice and access to justice, and therefore it was apparent that the costs should be borne by the CFA.

Asked if the costs should be awarded against the CFA, she said: “Yes, at a more reasonable level.”

The judge said she wanted to hear from the GAL, whose arguments had been very helpful.

The CFA solicitor said that the costs were a matter between the respondent and the CCLRP.

Giving her ruling Judge Horgan said: “I noted the public interest benefit in the application, and took long hard consideration to come to a decision. The application was brought by the CCLRP and, when an application is brought, the applicant exposes themselves to costs. This is the norm. However, there are exceptions to this norm. The onus is on the party resisting costs to convince the court as to why they fall within an exception. On this occasion I have listened carefully to all three parties.

“It seems that the role of the parents was limited in terms of their submission. However this is not to be faulted, it is their Constitutional right and there is no point in making submissions for the sake of making submissions. This does not undervalue their participation.

“It is extraordinary that, given the public interest nature of the application, there is no state fund available to assist the CCLRP. There used to be the Attorney General scheme but I am not sure if that is still in existence.”

Ms Blackwell said there was an Attorney General scheme still in existence, but it had been severely restricted and was not applicable in this case.

The judge said she noted that these were civil proceedings and the District Court Rules should apply. Order 53 Rule 2 (1) stated: “Save as otherwise provided, the costs specified in each scale in the Schedule of Costs are the only lawful costs.”

She had considered the Supreme Court guidance on costs in such cases. Based on this, she could not make a ruling against the CFA. Therefore, costs must follow the event, the event was the application and the application was made by the CCLRP. The relevant costs are those set out in the District Court Rules. Although the parents had a limited role from a legal perspective, this cannot be prejudicial.

“If costs cannot be agreed between the parties while following the Scale of Costs in the District Court rules, they can apply to the court for a measurement of costs. As this is District Court summary jurisdiction, the District Court rules are the appropriate rules to be followed in this case.”

She noted the necessary and public interest aspects of the application and found it deeply regrettable that there was no state fund that could assist the CCLRP.

Mr Murphy said he also regretted that fact. It was unforeseen that the costs would come back to the CCLRP. Ms Blackwell asked that the order be confirmed with liberty to make another other if the costs could not be agreed.

The judge said that costs should be attempted to be agreed upon based on the [District Court] schedule of costs and the parties should look at the overall context of the application including the public interest aspect and CCLRP’s role.