The High Court has ordered the Child and Family Agency to pay the costs of a judicial review brought by a person identified as J., finding that the Agency’s earlier offers to settle did not provide a proper basis for the court to quash its decision.
The costs judgment, delivered by Mr Justice Garrett Simons on 21 December 2020, followed a principal judgment delivered on 19 October. That earlier judgment set aside a 26 July 2018 decision-letter in which the Agency said an allegation of historical child sexual abuse against J. was provisionally “founded”. The alleged incidents were said to have occurred in summer 1969. The complainant and J. are anonymised in the judgment.
The costs ruling considered whether either side had been entirely successful, the significance of the Agency’s settlement offers, and the parties’ conduct. The judge said J. succeeded in having the decision-letter set aside, but did not obtain the other relief sought: an order permanently restraining the Agency from making any further inquiry. The court also did not direct the Agency to reconsider the complaint. Neither party, therefore, was entirely successful.
The Agency had offered in December 2018 and February 2019 to consent to an order setting aside the decision. But it maintained that it had acted lawfully and did not identify the legal grounds for quashing its decision. The judge held that those offers were ineffective: certiorari requires the court to be satisfied there is a proper legal basis, and the remedy is not something a party can simply offer to give.
The judge also noted that the Agency’s serious decision-making deficiencies were conceded only after the full hearing. They included applying the wrong standard of proof, one decision-maker not having met the complainant, and failing to disclose an earlier decision to close the investigation file. A crucial 2016 letter recording that earlier decision was provided to J.’s side in March 2019.
The full hearing also clarified the Agency’s statutory position, the judge said. The Agency retained discretion to investigate further but was not legally obliged to do so; any power to investigate, make findings and publish them to a person’s family and employer had to be exercised reasonably and proportionately. The costs judgment did not bar any future inquiry.
The judge rejected the Agency’s attempt to rely on its earlier objection that the judicial review was premature because J. had not completed an administrative appeal. The Agency had abandoned that objection at the hearing, and the judge said the appeal would not have been an adequate alternative given the shortcomings in the original process.
The Agency was ordered to pay J.’s costs, including the costs of two counsel, reserved costs and the written submissions and paper-based costs application. The costs are to be assessed by the Office of the Legal Costs Adjudicator if the parties cannot agree. The order is stayed in the event of an appeal.