Law Report: Costs order in case of childminder upheld: Sutton London Borough Council v Davis (no 2); Family Division (Mr Justice Wilson), 10 June 1994.

In civil proceedings in the magistrates' courts, where the successful party was legally aided and the costs were large, the court, on an application for costs, should at least consider whether to adjourn the proceedings pending an assessment by the area director of the legal aid board or make an order in the amount of the future assessment, rather than specify the amount in advance of assessment.

Mr Justice Wilson dismissed the council's appeal against an order for costs made by Sutton justices in the sum of pounds 15,712 against the council.

The justices allowed an appeal by Anne Hilary Davis against the council's refusal to register her as a child minder. That decision was upheld by Mr Justice Wilson (the Independent, 17 March 1994). The justices, pursuant to rule 22(1) of the Family Proceedings Courts (Children Act 1989) Rules 1991 (SI no 1395), ordered that the council pay costs of pounds 15,712. Mrs Davis was legally aided. The council appealed against the order for costs against it and against the sum.

James Munby QC and Caroline Rodger (Council Solicitor) for the council; James Holman QC and Howard Shaw (Spencer Gibson, Sutton) for Mrs Davis; Charles Utley (Legal Aid Board) for the board.

MR JUSTICE WILSON said that unlike care proceedings, where it was unusual to order the local authority to pay costs, the council here made an incorrect decision about Mrs Davis's right to be registered. The principle that costs should follow the event should be applied.

Where the successful party was legally aided and the litigation had been substantial, the system of quantification of costs by the justices in advance of assessment by the area director could prove particularly unsatisfactory. Unfortunately neither of the other two orders open to the justices, namely to adjourn assessment or to make an order for payment in the amount of future assessment, was wholly satisfactory.

There was an urgent need for reform of procedures in relation to the quantification of orders for costs in civil proceedings in the magistrates' courts whether or not the successful party was legally aided.

Where the successful party was legally aided and where the costs were large, the court should at least consider whether to adjourn pending the director's asssessment or make an order in the amount of the future assessment, rather than to proceed to specify the amount in advance of assessment.

It was not argued before the justices in the present case that they should do other than to proceed at once to specify the amount to be paid by the council. It was reasonable for the justices to proceed to specify the amount of the costs and there was ample material to justify their conclusion.