The Court of Appeal has reversed a High Court decision refusing costs to C., the mother of A., after the Child and Family Agency (CFA) failed in its application concerning A.’s confidential medical information. The appeal court ordered the CFA to pay C.’s costs of the proceedings, including reserved costs once ascertained.
The underlying High Court case concerned whether a doctor could disclose A.’s HIV status without his consent to a person the doctor believed he was having unprotected sex with and who was considered at risk of infection. A. was a minor when the proceedings began and was then subject to a care order. C. was joined as a defendant by the CFA and supported her son’s opposition to the relief sought.
After a five-day hearing in December 2017, the High Court refused the CFA’s requested orders. It found that the evidence did not establish a basis to breach A.’s confidentiality. The CFA did not appeal that decision. A. was awarded costs by consent, but the High Court refused C.’s application for costs against the CFA, reasoning that her legal costs could be met through civil legal aid.
C. appealed. The CFA argued that the High Court judge had properly exercised discretion to depart from the usual rule that costs follow the event, and that C.’s main role at trial was as a witness.
The Court of Appeal held that the costs principles applied to legally aided parties under section 33(2) of the Civil Legal Aid Act 1995 required the court to consider C.’s application as it would if she were not legally aided. It distinguished the Supreme Court’s decision in *The Child and Family Agency v. O.A.*, which concerned District Court child care proceedings involving a series of orders and no full hearing on the issue before the Circuit Court. Here, the High Court proceedings under its inherent jurisdiction ended in a final determination rejecting all the CFA’s requested relief.
The appeal court said C. had been a full party with a direct interest in the proceedings, and that her submissions played a significant part in the outcome. It found that the High Court judge erred in treating her as merely a witness and in relying on legal aid and the allocation of public costs as reasons to refuse her costs. The appeal court reversed the High Court’s costs order and awarded C. the proceedings’ costs against the CFA, including reserved costs when ascertained.