Case No: B4/2006/2553
Neutral Citation Number: [2008] EWCA Civ 938
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE PRINCIPAL REGISTRY OF THE FAMILY DIVISION
(HER HONOUR JUDGE COATES)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday, 10th July 2008

Before:

LORD JUSTICE WARD
and
LORD JUSTICE WALL
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IN THE MATTER OF F (A Child)

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(DAR Transcript of 
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THE APPELLANT APPEARED IN PERSON.

THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.

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Judgment

Lord Justice Ward:

1.	This is a renewed application being made by Mr F for permission to appeal the order for costs made against him by HHJ Coates sitting as a judge of the High Court on 1 November 2006 at the conclusion of contested proceedings relating to the child of the parties, a young boy who soon will be 10 years old. 

2.	The proceedings before the judge were principally the father’s application for a residence order in respect of the child, mother’s applications in respect of his contact which she wished to be defined and supervised, together with an application she made on the day of the hearing for an order under section 91(14).  

3.	The case centres on the fact that the father discovered when he was with the boy that the boy’s penis was discoloured.  The boy explained to him that the mother’s partner had squeezed his penis.  The father took the child to a doctor who examined the boy, observed that there was this discolouration, reported the matter to the social services department; they investigated it fully, the boy made contradictory statements about the partner hurting him and father hurting him, the father brought the proceedings because he was and probably still is convinced that his son had been abused by this other man.

4.	The mother counter-charged with allegations that the father had abused his own son.  There was a good deal of evidence which it is unnecessary to rehearse here, but among the evidence was a report from Dr Judith Trowell, a well known child psychiatrist who was jointly instructed, who found that the boy had been sexually abused.  In fact in the judgment the judge handed down, she was eventually satisfied that there was no sexual abuse, that the discolouration was more likely to have been consistent with a normal phenomenon, as she described it, of congestion or could have been associated with inflammation or infection.  But she was quite satisfied that there was no sexual abuse committed either by the partner or by the father.  She found established the fact that there was truth in the boy’s complaint to his father that the partner had played spanking games with him, spanking him on the backside in a way the boy did not like, but the judge, though finding that happened, adjudged that it was all in play and in games and was therefore of no great significance.  In the result the father’s application for residence was dismissed.  

5.	Having handed down the written judgment, there was then a long delay before costs could be dealt with and the hearing appears to have been adjourned on some occasions because the father had suffered a breakdown.  When, however, the matter was finally listed for 1 November he had written to the court indicating that he was unwell, that he was unable to attend, that he was endeavouring to obtain pro bono assistance and seeking a further adjournment.  The court was aware of his ill health and aware of the fact that he would not be in attendance.  On the eve of the hearing a schedule of costs was served upon him but not, as I understand it, counsel’s skeleton argument; and so the judge, in dealing with costs, had to deal with the fact that the father was not there.  

6.	In a sense were are in the same dilemma today because notice has been given to the mother, and her solicitors have written to the court on 9 July a letter of which we have taken full account, explaining that she is abroad, she will not attend, she cannot afford the services of solicitors, and they have explained her position on paper and we, as I say, take full account of that.

7.	HHJ Coates proceeded in the father’s absence.  The father complains, and I understand why, that the judge was wrong to frame her judgment in terms that “the father has chosen not to attend today” when, as she knew, he was incapacitated through ill health; but that is a tiny point.  He certainly was aware of the hearing; it had been a long time that it was outstanding and I can understand why the judge proceeded in his absence.  But in doing so it behoved her to take special care to ensure that no unfairness was being perpetrated against the father in the circumstances. 

8.	She observed that mother had threatened to apply for costs.  She referred to the skeleton argument which the father had not seen, asserting the father’s unreasonable behaviour during the litigation, and she was satisfied that he had behaved in a harassing and totally unacceptable manner during the course of the litigation.  Mr F challenges that finding but it seems to me that it is impossible for this court to go behind it.  The judge had the advantage of seeing and observing him over what I am told was a seven day hearing, and she undoubtedly formed a number of adverse conclusions about him and the way he had conducted himself which she expressed in the course of judgment, finding from time to time that he was vindictive, had behaved in a harassing manner during parts of the litigation.

9.	I do not see how we can go behind that conclusion.  Where, however, the father has a better point to make, it is this: that the judge failed to take into account her own findings that the mother had put forward a case against him which was not established.  Here the reality is that the boy had suffered an injury which was of sufficient concern to trouble the general practitioner, to involve the social services, to call for a psychiatrist to examine all the papers and to have that psychiatrist to have concluded there was sexual abuse.  It seems to me in those circumstances that it is not fair to the father to condemn him for raising those matters and bringing them to the attention of the court. Yes, he failed to establish the case; but so did the mother and, on the other hand, the father was successful in establishing his case, on a minor aspect it may be, that the partner had engaged in these spanking games with the boy.  So it was not all one way.  

10.	The judge, indeed, in her judgment makes reference to the fact that both parents were making negative comments about each other to various people and that the mother was strong enough in her personality from time to time to give as good as she got.  So in that respect I do not think the judge has borne all the relevant factors in mind.  She went on to make a finding that the father suffered some sort of personality disorder and the father, quite rightly, points to her judgment in the main proceedings in which she confirms she had no psychiatric evidence on the father and there was, therefore, technically no basis for that finding.  That does not mean she was not entitled to find as she did that he was manipulative and harassing.  But the question is: did that conduct go so far as to undermine the usual rule in family cases, that there be no order for costs where both parties reasonably present their case to the court?  In my judgment this matter was properly brought before the court, but in the conduct of it the father has gone beyond the bounds of what was appropriate, on the findings of the judge, which I cannot upset.  It seems to me that the judge erred in not taking into account the way that the mother’s case was not established, and in those circumstances it seems to me that in the exercise of her discretion she ought to have said that the father should be responsible for a part of the costs and to order him to pay one half of the costs of those proceedings.

11.	She went on, however, to make an assessment there and then on an indemnity basis of the mother’s costs supported by the costs schedule prepared by the solicitors.  It does not state when the work was done, it does not state what work was done, other than categorising it under headings of drafting correspondence, perusing documents and so forth.  The solicitors were seeking some £62,800 and counsel some £48,000, a total, with other disbursements and costs after the final hearing, of approximately £120,000.  

12.	For my part I feel, with respect to the judge, who had this case before her over many days and was in a better position to judge matters than I am, nonetheless to order indemnity costs is a condign action to take; and to order them throughout the whole of the duration of these proceedings without any investigation seems to me, with respect to the judge, to have been wrong.  There were numerous interlocutory applications.  The judge seems to have accepted critically that some were made without notice without examining why they were made without notice.  We have been told that they were done in  times of emergency.  The judge did not investigate those interlocutory orders, some of which were made by consent, for example on 23 September, which is one that falls open as we page through this bundle; another before Macur J on 17 February, when the judge accepted undertakings relating to the way contact should be organised.  I would have thought that consent orders and orders quite clearly compromised, in the way that the latter order was, would ordinarily require an order for no order for costs, or, if costs were to be ordered, certainly would not be an immediate justification for those costs to be assessed on an indemnity basis, and in my judgment the judge was wrong to have undertaken an assessment on the bald facts set out in the schedule without a detailed consideration of what is a large bill for a disputed residence application.  The right order probably was to have directed assessment of those costs and not undertake the exercise herself.

13.	In my judgment, therefore, this application should be granted and the appeal allowed, but the question then is what order should this court make?  As I have indicated, the order that perhaps ought to have been made would be to order the father to pay 50 per cent of the costs and send the matter for assessment; but we must look at the reality of the position.  Among the factors that we have had our attention drawn to is the fact that the boyfriend paid these costs, not the mother; and it may be an argument, about which I express no conclusion, that she should not get her costs in those circumstances.  Moreover she recognises that the father has no money and would have been content with an order that we say the costs should not be enforced without leave.  It would in those circumstances be utterly disproportionate to incur the waste of time and money and expense in ordering these costs to be assessed.  It puts us in a difficulty of having to do the best we possibly can with the figures we have before us, and on that basis and judging the matter very much in the round, I would allow the appeal and substitute for the £119,000-odd ordered by the judge a sum of £50,000. 

14.	And so I would allow the appeal and order the father to pay the costs assessed in the sum of £50,000.

Lord Justice Wall: 

15.	I agree

Order: Application granted; appeal allowed