Jersey Unreported Judgments

Costs - reasons for declining to make any order for costs

[2021]JRC013

Royal Court

(Samedi)

22 January 2021

Before     :

J. A. Clyde-Smith O.B.E., Commissioner, sitting alone

 

Advocate H. B. Mistry for the Appellant.

Advocate A. E. Binnie for the Respondent.

judgment

the COMMISSIONER:

1.        On the handing down of the Court's judgment in this matter on 16^th November 2020 (W v X (Family) [2020] JRC 240), in which the appellant's appeal and application to vary the periodic payments ordered by the Registrar were dismissed, Advocate Binnie applied for the respondent's costs on the standard basis.

2.        Whilst acknowledging the general practice in proceedings relating to children to make no order as to costs, she submitted that there were exceptional circumstances arising out of the appellant's unreasonable conduct in this litigation which justified such an order.  In summary, she submitted:

(i)        He had consistently demonstrated a lack of respect for the Child since she was born and for these proceedings in his delay and evasion of orders.  He had now brought two appeals, both of which have been unsuccessful and the respondent had endured stress and desperation for all of the Child's life.

(ii)       The appellant's conduct had caused Advocate Binnie an inordinate amount of work, namely some 220 hours to date, or approximately £66,000.

(iii)      The manner in which the appellant had run the litigation had resulted in his own legal costs exceeding what would be required to meet the Child's needs until she reached primary school age.

(iv)      As a result of the appellant's failure to treat these proceedings with the seriousness they deserve, costs were ordered in March 2020 but were as yet unpaid. I note that the issue of costs for the final hearing had been left over.

(v)       As he had been unsuccessful in all of his current applications, it was only right to mark his continued conduct by making a further costs order against him of and incidental to this hearing.

3.        Advocate Binnie had represented the respondent on Legal Aid (no contribution being required from the respondent) but as the Court of Appeal held in Flynn v Reid [2012] (2) JLR 226, the fact that a costs order against the appellant would benefit Advocate Binnie, as opposed to the respondent was an irrelevant consideration for the reasons explained in the Court of Appeal's judgment.

4.        The Court of Appeal explained the reasons for the general practice of the Court in proceedings relating to children in the case of C v D [2018] JCA 020, when the Court of Appeal said this at paragraph 21-24:

"21     There are broadly three reasons for adopting this general practice.  All of them flow from the same root cause, namely that the overriding concern of the court is to protect and promote the interests of the child.  With that in mind, the following three considerations are likely to be present in most proceedings relating to children:-

(1)       First, orders for costs will tend to diminish the funds available to meet the needs of the family.

(2)       Second, the parties should not be discouraged from putting forward arguments which they conscientiously believe to be in the child's interests for fear of being penalised in costs if the court happens to disagree.

(3)       Third, since a costs order is almost invariably made (if at all) in favour of the winning party, making such an order in this context would add insult to injury thereby aggravating the sense of grievance felt by the losing party in circumstances which are already likely to be fraught, and any exacerbation of tensions would not operate in the child's interests.

22       It is, however, important to emphasise that the practice of not making costs orders in proceedings relating to children is a practice, not a rule.  Any one of the three factors outlined above may be absent in any given case, or its force may be enhanced or diminished by the particular circumstances in hand.  Alternatively, other factors may be present which militate in favour of (or against), making such an order. The court always retains its discretion in this regard, and it is a discretion whose exercise must always be responsive to the particular facts of each case.  It would be both impossible and also misguided to attempt any exhaustive definition either of the circumstances that might justifiably prompt an adverse costs order in proceedings relating to children, or of the relevant factors which might properly be taken into account in any given case.

23       For this reason, we are not inclined to adopt the approach suggested by the Court of Appeal in Re T (Order for Costs [2005] 2 FLR 681, where it said that an adverse costs order in proceedings relating to children 'should only be made if the penalised party has been unreasonable in his or her conduct ... [in] the litigation' (emphasis added).  Whilst that is likely to represent the paradigm situation for making an adverse costs order, it should not necessarily be regarded as the only one.  Furthermore, for the avoidance of doubt, we would endorse the observations of Munby J in In re N (a child) v A & others [2010] 1 FLR 454, where he said that unreasonable conduct in the litigation may open the door to making an adverse costs order, but it does not of itself necessitate the making of such an order.

24       In relation to the exercise of the court's jurisdiction to make costs orders in civil cases more generally, our attention has rightly been drawn to the guidance given by this Court in Flynn v Reid [2012] JLR 226.  There, Beloff JA pointed out at paragraphs 39-40 that the jurisdiction should in general be exercised by reference to the conduct and the interests of the parties, not the interests of their lawyers."

5.        In that case, costs were awarded against the appellant father, who had withdrawn an appeal which he had lodged for tactical purposes knowing it would fail and as a means of harassing the mother and in order to gain a forensic advantage, rather than making decisions in the interests of the children.

6.        By reference to this criteria, Advocate Mistry submits that:

(i)        A costs order against the father will diminish the funds available to him.  In this case the father's expenditure exceeds his income and he has to meet his obligations through further borrowing.

(ii)       There is mistrust between the parties and a costs order would add insult to injury, thereby aggravating the sense of grievance felt by the father.  The situation is already fraught and any exacerbation of tensions would not operate in the Child's interests.

7.        Advocate Mistry submitted that the father had not conducted the litigation in an unreasonable way and even if he had, his conduct would have to be exceptional in order to meet the necessary threshold.  In my view, this is to place the threshold too high.  The Court of Appeal in C v D referred to "unreasonable conduct" which might justify an order for costs (see also In the matter of B [2011] JRC 045).

8.        Advocate Binnie responds in relation to affordability by a pointing out where the father has chosen to spend his money, in particular the legal costs he incurred, which exceeded the amount that would be required to meet the Child's needs until she reaches primary school age.  In her view, the appeal was not brought in the Child's interests, but to serve the father's interests, and failing to make a costs order would aggravate the mother's sense of grievance.  As to exacerbating tensions between the parties, she said there was no relationship between them and no communication, so tensions could not get worse.

9.        Advocate Binnie accepted that the focus should be on the interests of the parties as opposed to the interests of the lawyers, but she said the Court had a duty to be fair and it was not fair that she had spent some 220.5 hours/£6,750 on responding to a meritless appeal.

10.      A difficulty I have in this matter is not having an overview of all of the litigation that has taken place in respect of the Child, or indeed jurisdiction over all of the costs that have been incurred.  I am aware that the Registrar has made a costs order in March 2020, which reflects conduct on the part of the father that she must have found to be unreasonable in order for the costs order to be made against the usual practice.  It would not be appropriate for him to be penalised twice for that conduct.  As far as I am aware, the costs of the earlier appeal against the interim order remains open, but that appeal was of course before a differently constituted Court, and it would be a matter for the Deputy Bailiff, who presided, to consider any order for costs that might be made should an application come before him.

11.      In these circumstances, I can only properly and fairly consider the father's conduct in bringing this appeal against the Registrar's final order over which I did preside set against this background.

12.      I do not agree with Advocate Binnie that the appeal was meritless, or that the father would have known it was highly likely to fail.  Admittedly, some of the arguments put forward could be so regarded, but not the central argument as to affordability.  As the Registrar acknowledged at paragraph 47 of her judgment (unpublished), the funding of the Child's needs was a difficult aspect of the claim.  She described the order she made against the father as "a burden" but one which was affordable through the father using debt (paragraph 70).

13.      The conduct of the father in bringing an appeal which did have some merit on the issue of affordability is to be contrasted with the conduct of the father in C v D, who brought an appeal which the Court found he did know was meritless and was brought entirely for tactical purposes.

14.      I bear in mind the financial position of the father, which the Registrar found to be accurate, and conclude that a costs order against him would simply increase the level of debt that the father will have to incur and in my view, that would not be in the Child's interests.

15.      I therefore decline to make any order for costs in respect of this appeal

Authorities

W v X (Family) [2020] JRC 240. 

Flynn v Reid [2012] (2) JLR 226. 

C v D [2018] JCA 020. 

In the matter of B [2011] JRC 045.