Alina Dewshi reviews A Local Authority v Mother & Ors [2021] EWHC 2794 (Fam) (case in relation to costs against a third party)

The Local Authority, the parents and the Children’s Guardian all brought an application for a costs order against two third parties, referred to as DM and MH. This was because it was found that MH was not skilled in acting as an intermediary, meaning the ‘final’ hearing had to be abandoned.

DM was appointed as the Father’s intermediary but MH also acted as his intermediary for 2 days of the final hearing when DM was unavailable. It was not suggested the DM was incompetent, even though he was not a registered intermediary within the MoJ Criminal Courts Scheme.

MH did not perform their role well: according to the judge ‘it became apparent that MH had no knowledge of the relevant Advocates Toolkits; had not read the Father’s cognitive assessment and had not read his Intermediary Assessment’. The father’s legal team tired to find an alternative intermediary, but the replacement intermediary was not able to meet the father immediately.

The father informed the court (via counsel) that he had not understood parts of the evidence. An application was made on behalf of the father for the judge to close the final hearing for a new fresh hearing to be listed instead. This application was opposed by the local authority and Children’s guardian, who argued that the current hearing could be extended to allow for a substitute intermediary. The trial judge thought the current final hearing could not proceed fairly, and so adjourned the case.

The Local Authority, the parents (both mother and father) and the Children’s Guardian sought the costs of the abandoned hearing

DM and MH were not represented at the hearing, although DM filed a statement. DM’s documentation showed an email in which, the judge said, it appeared that DM had overcommitted and stated that he had ‘prepared’ MH for the role ‘in which she has limited specific experience’. The judge said this email had been ‘seriously misleading’ with regards to MH’s ability.

The local authority submitted that the hearing was adjourned to due to MH’s lack of knowledge and that the situation had been caused by DM’s conduct. DM submitted that he was a proper intermediary and that it was incumbent on the trial judge to ensure competence and the judge did not do that. MH was extremely apologetic, as she thought her role was simply to be there as a supporter or friend to the party.

In concluding, the judge emphasised that ‘intermediaries perform an extremely important function in ensuring a fair trial for highly vulnerable people in the family courts, usually parents’. It was therefore ‘of great importance that they do that job to a professional standard and their role is properly considered and monitored, both at the stage of their appointment and during the conduct of the relevant hearings.’

The judge rejected DM’s argument that it was on the trial judge to verify competence and said that once the trial judge had been made aware of MH’s incompetence, the trial judge had taken all ‘appropriate steps’. The judge found that DM had misrepresented MH’s ability to the solicitors and had taken ‘no steps to ensure her competence to act’.

No order was made against MH, as she ‘simply had no idea what the role entailed’ and, as DM had not instructed her, did not know ‘why she was unable to fulfil the role’. DM, however, was given a wasted costs order, as the ‘exceptional circumstances’ justified such an award

For further information on this topic or on any other legal area, please contact John Szepietowski or Kay Stewart at Audley Chaucer Solicitors on 01372 303444 or email or visit our Linkedin page

Alina Dewshi

November 2021


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