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You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> A and B (Parental Alienation No.3)[2021] EWHC 2602 (Fam) (05 May 2021) URL: https://www.bailii.org/ew/cases/EWHC/Fam/2021/2602.html Cite as: [2021] EWHC 2602 (Fam) |
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FAMILY DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
The Father |
Applicant |
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- and - |
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The Mother |
Respondent |
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Re A and B (Parental Alienation: No.3) |
____________________
Mr E Devereux QC (instructed by Dawson Cornwell) for the Respondent
Hearing dates: on the papers
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Crown Copyright ©
The Hon Mr Justice Keehan :
Introduction
The Law
"(1) The court has a discretion as to –
(a) whether costs are payable by one party to another;
(b) the amount of those costs; and
(c) when they are to be paid.
(2) If the court decides to make an order about costs –
(a) the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party; but
(b) the court may make a different order.
(3) The general rule does not apply to the following proceedings –
(a) proceedings in the Court of Appeal on an application or appeal made in connection with proceedings in the Family Division; or
(b) proceedings in the Court of Appeal from a judgment, direction, decision or order given or made in probate proceedings or family proceedings.
(4) In deciding what order (if any) to make about costs, the court must have regard to all the circumstances, including –
(a) the conduct of all the parties;
(b) whether a party has succeeded on part of his case, even if he has not been wholly successful; and
(c) any admissible offer to settle made by a party which is drawn to the court's attention, and which is not an offer to which costs consequences under Part 36 apply.
(4) The conduct of the parties includes –
(a) conduct before, as well as during, the proceedings and in particular the extent to which the parties followed the Practice Direction – Pre-Action Conduct or any relevant pre-action protocol;
(b) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;
(c) the manner in which a party has pursued or defended his case or a particular allegation or issue;
(d) whether a claimant who has succeeded in his claim, in whole or in part exaggerated his claim.
(5) The orders which the court may make under this rule include an order that a party must pay –
(a) a proportion of another party's costs;
(b) a stated amount in respect of another party's costs;
(c) costs from or until a certain date only;
(d) costs incurred before proceedings have begun;
(e) costs relating to particular steps taken in the proceedings;
(f) costs relating only to a distinct part of the proceedings; and
(g) interest on costs from or until a certain date, including a date before judgment."
"Where the debate surrounds the future of a child, the proceedings are partly inquisitorial and the aspiration is that in their outcome the child is the winner and indeed the only winner. The court does not wish the spectre of an order for costs to discourage those with a proper interest in the welfare of the child from participating in the debate. Nor does it wish to reduce the chance of their co-operation around the future life of the child by casting one as the successful party entitled to his costs and another as the unsuccessful party obliged to pay them…"
"Another consideration is that, in most children's cases, it is important for the parties to be able to work together in the interests of the children both during and after the proceedings. Children's lives do not stand still. Their needs change and develop as they grow up. The arrangements made to cater for those needs may also have to change. Parents need to be able to co-operate with another after the case is over…Stigmatising one party as the loser and adding to that burden of having to pay the parents' costs is likely to jeopardise the chances of their co-operating in the future."
"In family proceedings, however, there are usually special considerations that militate against the approach that is appropriate in other kinds of adversarial civil litigation. This is particular true where the interests of a child are at stake. This explains why it is common in family proceedings, and usual in proceedings involving a child, for no order to be made in relation to costs."
"we have concluded that the general practice of not awarding costs against a party, including a local authority, in the absence of reprehensible behaviour or an unreasonable stance is one that accords with the ends of justice…" (emphasis added)"
"…the fact that a parent has litigated in an unreasonable fashion may open the door to the making of an adverse costs order; but it does not of itself necessitate the making of such an order. There is, at the end of the day, a broad discretion to be exercised having regard to all the circumstances of the case. And a judge must be careful not to fall into the trap of simply assuming that because there has been unreasonable behaviour in the conduct of the litigation an order is therefore to be made without more ado. Careful attention must be paid to all the circumstances of the case and to the factors which, on the authorities I have referred to, indicate that normally it is inappropriate to make such an order – factors which do not simply disappear or cease to have weight merely because the litigation has been conducted unreasonably."
"Where the court is to assess the amount of costs (whether by summary assessment or detailed assessment), pursuant to CPR r 44.3(1) the court will not allow costs which have been unreasonably incurred or are unreasonable in amount. Pursuant to CPR r 44.3(2), when assessing costs on the standard basis the court will only allow costs which are proportionate to the matters in issue and costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred. CPR r 44.3(5) provides, in so far as is relevant to this case, that costs incurred will be proportionate if they bear a reasonable relationship to the complexity of the litigation, any additional work generated by the conduct of the paying party and any wider factors involved in the proceedings, such as reputation or public importance (see also FPR 2010 PD28A para 4.4).
…
On the question of proportionality, the touchstone of reasonable and proportionate costs is not the amount of costs which it was in the party's best interests to incur but the lowest amount which he or she could reasonably have been expected to spend in order to have his or her case conducted and presented proficiently having regard to all the relevant circumstances. Expenditure above and beyond that level is for a party's own account and not recoverable from the other party." [emphasis added]"
"In summarily assessing costs the judge's task is to focus on the heads of costs he or she is being asked to assess and to form his or her judgment of the proportion it is reasonable to require the paying party to pay."
The Father's Application for Costs up to the Conclusion of the Final Hearing
i) the mother retained or received something in excess of £2million at the conclusion of the financial remedy proceedings;
ii) the mother has substantial investments and liquid assets in excess of £200,000;
iii) she owns a luxury flat in Moscow;
iv) albeit her earned income is relatively modest, her rental property in Marylebone costs her £4,800 per calendar month;
v) throughout these proceedings she has been represented by solicitors and leading counsel; and
vi) her wealthy family in Russia have regularly provided her with financial support.
Costs of the Hearings on 11th January and 24th February
i) the pursuit of the opportunity to cross examine Ms Woodall;
ii) the attempt to undermine her professional integrity and objectivity; and
iii) the application to join the children as parties
was wholly unreasonable and a totally ill-judged litigation tactic on the part of the mother. These actions were so egregious as to merit, indeed require me to exercise my discretion to make a costs order against the mother in respect of the costs incurred by the father in relation to this hearing.
Summary Assessment