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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Timokhina v Timokhin (Rev 1)  EWCA Civ 1284 (18 July 2019)
Cite as:  EWCA Civ 1284,  1 WLR 5458,  WLR(D) 420,  WLR 5458
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ON APPEAL FROM Central Family Court
His Honour Judge Meston QC
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE KING
LORD JUSTICE MOYLAN
| ANNA TIMOKHINA
|- and -
Stephen Jarmain (instructed by Withers LLP) for the Respondent
Hearing date: 25th June 2019
Crown Copyright ©
Lady Justice King:
The proceedings in front of HHJ Meston
"I write further to our conversation this afternoon.
For the avoidance of doubt our position is that the appeal will be withdrawn and that there should be no order for costs. I understand that your counsel's brief fee will be deemed at 9am tomorrow. It is simply absurd for further costs to be incurred by you instructing counsel to argue in respect of this issue. I will seek instructions from my client in respect of your letter sent earlier today as soon as possible but will not be able to do so by 9am tomorrow."
"As we have made clear, our client was prepared to withdraw her appeal. The only remaining issue was the question of costs. It is unreasonable for your client to continue to insist that a full bundle and the documents prepared in the light of that.
In order to compromise this matter our client confirms that she is prepared to pay your client's costs on a standard basis to be assessed if not agreed."
"…..seeking costs for the forthcoming hearing of leading and junior counsel when we informed you on 19 September 2018 that our client would withdraw the appeal and asked that there be no order for costs. At that time the only issue was costs. You informed this office through a telephone call on that date that counsels' fees had not yet been incurred. For you then to incur leading and junior counsels' fees for the sum set out when the only issue at question was costs is disproportionate."
The hearing on 2 October 2018
"I accept the submissions on behalf of the father. The reality is that although there is no direct reference to costs in that order, and perhaps there should have been, there was no consideration given to costs at the end of that hearing, and it seems clear to me that the issue of costs in respect of that hearing and this subsequent appeal remained at large and was in effect left over until today, when the court would be considering not only any liability for costs in relation to the appeal but also the possible application for security of costs. Had it been suggested that in fact the order being silent as to costs was determinative of costs, I imagine there would have been an application for amendment under the slip rule, which to my mind would have been readily granted."
"The legal principles are not in dispute. Before considering whether or not to grant indemnity costs it is necessary to identify some conduct or circumstances which take the case out of the norm and which might justify indemnity costs. It is not necessarily enough that an appeal or an application is speculative or weak. The court has to consider the reasonableness or otherwise of the application to the court, and it is firmly submitted on behalf of the father, that in the light of the findings of fact of the district judge and in the light of the subsequent conviction, the mother's appeal and pursuit of that appeal were wholly unreasonable and well within the type of conduct considered to deserve an indemnity order under the established principles. The submissions on behalf of the father… have been amplified in oral submissions, and I accept them entirely as justifying an order for indemnity costs. It is not enough simply to say, as has been said on behalf of the mother today, that her appeal was in some respects not entirely spurious and that there were Article 6 arguments. There were indeed Article 6 arguments, but the reality is that the basis of any appeal has been entirely undermined by her criminal conviction, whether that be on the basis of a plea of guilty or otherwise, and in the circumstances her prospects of attacking the findings of fact made by a district judge on an appeal were almost entirely hopeless."
"The position now is that I have to consider a summary assessment of costs incurred on behalf of the father between 25 July and today, and bear in mind that I have determined that this should be assessed on an indemnity basis. The revised statement of costs which has been provided, dated yesterday, 1 October including the costs incurred today, 2 October, amounts to £109,394 odd. I have listened to the argument about individual items on that statement. Inevitably, on a summary assessment the information is somewhat sparse. I have been assisted by both the submissions on behalf of the father and also observations by his instructing solicitor indicating the reasons for the costs being formulated in the way that they have been. This was not a straightforward case and even at the point when the appeal appeared to be conceded, it ceased to be entirely straightforward, and I am satisfied that the fees referred to in the statement of costs were properly incurred by the fee earners. In terms of counsels' fees, I am satisfied that it was appropriate in the circumstances of this case to have retained both leading and junior counsel who dealt with the matter throughout and whose continued involved was, in the circumstances, justified up to and including today's hearing."
Costs in Family Proceedings
"28.1 The court may at any time make such order as to costs as it thinks just.
28.2 (1) Subject to rule 28.3 Parts 44 (except rules 44.2(2) and (3) and 44.10(2) and (3)), 46 and 47 and rule 45.8 of the CPR apply to costs in proceedings…….
(rule 28.3 has no application to the present case)
(i) CPR 44.2(2) says:"(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."
"(1) Where the court makes an order which does not mention costs –
(a) subject to paragraphs (2) and (3), the general rule is that no party is entitled –
(i) to costs;
(2) Where the court makes –
(a) an order granting permission to appeal;
(b) an order granting permission to apply for judicial review; or
(c) any other order or direction sought by a party on an application without notice,
and its order does not mention costs, it will be deemed to include an order for applicant's costs in the case."
i) By virtue of the exclusion of CPR 44.2(2), all family proceedings which are covered by the FPR are exempted from the rule under CPR 44.2(2) which says that "the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party"; however
ii) The general rule is that where an order does not mention costs, no party is entitled to costs: CPR 44.10(1)(a)(i); but
iii) By virtue of FPR 28.2, the general rule found at CPR 44.10, stands alone for the purposes of family proceedings. The three exceptions which, pursuant to CPR 44.10(2)(a) – (c), result in the making of a deemed costs order are excluded for the purposes of the general, wide-reaching discretion as to costs found in FPR 28.1.
1) The judge was wrong to award the costs of the hearing on 26 July 2018 when the order was silent as to costs and the general rule is that no party is entitled to costs;
2) That the judge was wrong in assessing costs on an indemnity basis;
3) The judge was in error in conducting a summary assessment of costs without the necessary information in order to conduct such an assessment;
4) The judge was wrong in awarding the father the entirety of his costs and in doing so failed appropriately to weigh whether the costs were proportionate or reasonable.
Ground 1: Costs of 26 July 2018 Hearing.
i) Under the 'slip rule' (CPR 40.12) as considered by the Court of Appeal in Bristol-Myers Squibb Co. v Baker Norton Pharmaceuticals inc. (2)  EWCA Civ 414 (Bristol-Myers). Put shortly, Bristol-Myers emphasised that the slip rule cannot be used to enable the court to have second or additional thoughts, and that once an order has been drawn up, any mistakes in it have to be corrected by an appellate court. The slip rule can be used however to amend an order so as to give effect to the intention of the court;
ii) The rule in Tibbles v SIG Plc (trading as Asphaltic Roofing Supplies)  EWCA Civ 518,  1 WLR 2591(Tibbles) in which the Court of the Appeal considered the jurisdiction of the court to vary or revoke its own order under CPR 3.1 (7).
1.1 These rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly, having regard to any welfare issues involved.
1.2 The court must seek to give effect to the overriding objective when it –"(a) exercises any power given to it by these rules; or(b) interprets any rule."
"(1) Where the court makes an order which does not mention costs-
a) The general rule is that no party is entitled to costs in relation to that order."
Ground 2: The basis of assessment.
Ground 3: Summary assessment
"1. Whenever a court makes an order about costs…the court should consider whether to make a summary assessment of costs."
Ground 4: Principle and quantum of costs.
1) The court will have regard to all the circumstances in deciding whether costs were –
(a) if it is assessing costs on the standard basis –
(i) proportionately and reasonably incurred; or
(ii) proportionate and reasonable in amount, or
(b) if it is assessing costs on the indemnity basis –
(i) unreasonably incurred; or
(ii) unreasonable in amount.
3) The court will also have regard to –
(a) the conduct of all the parties, including in particular –
(i) conduct before, as well as during, the proceedings; and
(ii) the efforts made, if any, before and during the proceedings in order to try to resolve the dispute;
(b) the amount or value of any money or property involved;
(c) the importance of the matter to all the parties;
(d) the particular complexity of the matter or the difficulty or novelty of the questions raised;
(e) the skill, effort, specialised knowledge and responsibility involved;
(f) the time spent on the case;
(g) the place where and the circumstances in which work or any part of it was done; and
(h) the receiving party's last approved or agreed budget.
"Where the amount of costs is to be assessed on the indemnity basis, the court will resolve any doubt which it may have as to whether costs were reasonably incurred or were reasonable in amount in favour of the receiving party."
Lord Justice Moylan:
Lord Justice Underhill: