I (The Mother) v J (The Father) and J (The Father) and I (The Mother)

• Jurisdiction: Jersey
• Court: Royal Court
• Judge: J. A. Clyde-Smith
• Judgment Date: 13 May 2014
• Neutral Citation: [2014] JRC 111
• Date: 13 May 2014

[2014] JRC 111

ROYAL COURT

(Family)

Before:

J. A. Clyde-Smith, Esq; Commissioner, sitting alone.

Between

I (the mother)

Applicant

and

J (the father)

Respondent

and

J (the father)

Applicant

and

I (the mother)

Respondent

Advocate A. T. H. English for the Mother.

The Father appeared on his own behalf.

Advocate C. G. Hillier as amicus curiae.

Authorities

I v J (Family) [2013] JRC 156 .

J v I (Family) [2013] JRC 157 .

I v J (Family) [2014] JRC 109 .

J v I (Family) [2014] JRC 110 .

I v J (Family) [2014] JRC 021 .

Civil Proceedings (Jersey) Law 1956.

In the matter of B [2011] JRC 045 .

R v R (Costs: Child Case) [1997] 2 FLR .

Re T (Order for Costs) [2005] 2 FLR 681 .

In the matter of CC [2011] JRC 114A .

In re N (a child) v A and others [2010] 1 FLR 454 .

R v G [2006] JRC 112 .

Flynn v Reid [2012] JLR 226 .

KS v ND [2013] EWHC 464 .

E v F [2013] JRC 185A .

Matrimonial — costs.

THE COMMISSIONER:

1 It stands to me to determine the issue of costs in relation to the above matters which culminated in the Court's judgments of 5 ^th August, 2013, (JRC 156), 5 ^th August, 2013 (JRC 157) 13 ^th May, 2014, (JRC 109) and 13 ^th May, 2014, (JRC 110).

2 Consistent with those judgments I will refer to I as the mother and J as the father. In these actions, the mother applied for financial provision in relation to their daughter B, who lives with the mother and the father applied for a shared residence order in respect of B. I am not going to summarise the previous findings of the Court, as they are set out in those four judgments, on the basis that those judgments are taken as read, but in very broad terms, the mother's application for financial provision for B was successful, but only in part, and the father's application for a shared residence order was unsuccessful. Restrictions were placed upon him bringing any further applications within the next three years.

3 The mother applies for her costs in respect of both actions on the indemnity basis. The father resists those applications, submitting instead that no order for costs should be made but that if an order was to be made, then it should be the mother who should contribute to his costs, not the other way round.

4 The father was unrepresented (in the main) up until the mother's financial application was referred up to the Royal Court on 4 ^th November, 2012. He was then represented by Advocate Heath until shortly after the close of the substantive hearings in August 2013. Thereafter, he again represented himself, but following the Court's judgment of 23 ^rd January, 2014, (JRC 021) with the assistance of Advocate Hillier as amicus curiae.

5 Advocate Heath's fees had been capped by agreement at £22,522.50 including disbursements, although her total time exceeded some £90,000. The father estimates his own time on both matters at 1,200 hours.

6 The mother was represented by Advocate English on Legal Aid. His firm's fees at the 100% of the Legal Aid rate (to which she had been assessed) were in the region of £146,148.60. At private client rates, this would equate to approximately £231,531.80. These costs can be apportioned as to approximately 68% to the financial proceedings and the balance to the shared residence proceedings.

The law

7 The Court's wide power to award costs derives from Article 2 of the Civil Proceedings (Jersey) Law 1956 but it would appear to be well established that the general practice is to make no order as to costs in children's cases. In In the matter of B [2011] JRC 045, the Court cited with approval and applied the principles set out in the English Court of Appeal decision in R v R (Costs: Child Case) [1997] 2 FLR where Hale J said at page 96:–

“There is no doubt that a practice has arisen of making no order as to costs in children's cases. This is summarised very conveniently in the judgment of Neil LJ in the case of Keller v Keller and Legal Aid Board [1995] 1 FLR 259 , 267–268 where he says:

‘In the last decade, however, it has become the general practice in proceedings relating to the custody and care and control of children to make no order as to the costs of the proceedings except in exceptional circumstances.’

In London Borough of Sutton v Davis (Costs) (No 2) [1994] 2 FLR 569 , 570H-571B Wilson J threw some light on the reasons for the present practice, the existence of which was recognised by Butler —Sloss LJ inGojkovic v Gojkovic (No 2) [1992] Fam 40, [1991] 2 FLR 233.

Neil LJ goes on to say

‘The court …. Retains the jurisdiction and a discretion to award costs in suitable cases. It is unnecessary and undesirable to try to limit or place into rigid categories the cases which a court might regard as suitable for such an award, but examples would be likely to include cases where one of the parties had been guilty of unreasonable conduct or where there was such a disparity between the means of the parties that a special order was justified.’

The reasons why this practice has developed perhaps fall into three categories. The first is general to all family proceedings and was pointed out by Butler-Sloss LJ in Gojkovic v Gojkovic at 57 and 237 respectively, that orders for costs between the parties will diminish the funds available to meet the needs of the family. Thus it is suggested in this case, that if the father is ordered to pay the mother's costs that will reduce the sums immediately available for the housing and other support of the parties and R. That may indeed sometimes be the case, but on the other hand if the costs of a legally aided party are not recovered in some way, they become a charge on property recovered as a result of the proceedings. Although that charge may be postponed it does, in due course, reduce the size of the cake. Furthermore, of course, it is well established that the incidence of costs as between the parties is one of the things that will be taken into account in ancillary relief proceedings in any event. It is certainly by no means inappropriate for orders for costs to be made along the way in ancillary relief proceedings .

The second reason which is given for there being no costs orders in general in children cases, is that the court's concern is to discover what will be best for the child. People who have a reasonable case to put forward as to what will be in the best interests of the child should not be deterred from doing so by the threat of a costs order against them if they are unsuccessful. That is indeed the major reason in children cases why the court is reluctant to add to the existing deterrents which all litigants face in coming to court.

The third reason is suggested by Wilson J in the case of London Borough of Sutton v Davis (Costs) (No 32) at 570–571, when he points to the possibility that in effect a costs order will add insult to the injury of having lost in the debate as to what it to happen to the child in future; it is likely therefore to exacerbate rather than to calm down the existing tensions; and this will not be in the best interests of the child .

Nevertheless, there clearly are, as Neil LJ pointed out, cases in which it is appropriate to make costs orders in proceedings relating to children. He pointed to one of those sorts of situation: cases where one of the parties has been guilty of unreasonable conduct.”

8 Hale J also went on to say this at page 98 which is relevant to the issues before me:–

“Of course, the parties should not be deterred, by the prospect of having to pay costs, from putting before the court that which they genuinely think to be in the best interests of the child, but there have to be limits. Children should not be put through the strain of being subject to claims that have very little prospect of success, still less should they be put through a quite unreasonable involvement in their parents' disputes ….”

9 More recently, the English Court of Appeal in Re T (Order for Costs) [2005] 2 FLR 681 reiterated that general practice and approved a summary of the principles given at first instance, which included the following:–

“2.5 The conduct of the parties is in reality the major consideration when deciding whether or not an exceptional order for costs should be made. It should only be made if the penalised party has been unreasonable in his or her conduct. Moreover the “unreasonableness” must relate to the conduct of the litigation rather than the welfare of the child ( R v R (Costs: child case) [1997] 2 FLR 95.

2.6 One has to be very careful in this distinction when, as in the case of (the mother), the apparent unreasonableness is as a result of the personality of the relevant party. In such circumstances, there is often an overlap of that party's conduct of the litigation and the conduct relating to the welfare of the child.”

10 In the case of In the matter of CC [2011] JRC 114A, the Deputy Registrar in applying these principles also referred to paragraph 17 of her judgment to the case of In re N (a child) v A and others [2010] 1 FLR 454, a case involving acrimonious and confrontational residence and contact proceedings, where Munby J said this:–

“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.”

11 In the case before me, any costs order made in favour of the mother, who is legally aided, would benefit her lawyers rather than herself and in R v G [2006] JRC 112, the Court...