MS v HW & Anor (Costs)

On 17 March 2025, at a final hearing at Manchester Civil Justice Centre, the parties reached agreement as to the contents of a consent order. I have approved the substantive terms of that order. It has yet to be submitted to the court for final approval as the determination of the mother’s application for the father to pay her costs remains pending. I now give my judgment on that costs application.

I heard submissions on costs from both Ms Shield, for the father and Dr Proudman, for the mother. I also have the skeleton argument of Dr Proudman, which, inter alia, addresses the matter of costs.

Dr Proudman’s skeleton argument sets out in the detail the relevant jurisprudence concerning awards of costs in private family law proceedings. I do not propose to discuss that jurisprudence at length. Of particular relevance, in my opinion, is the case of R v R (Costs: Child case) [1995] 2 FLR 95 and the judgment of Hale LJ (as she then was) at [74]. Having agreed with earlier authorities that ‘where litigation conduct has been blameworthy, in the sense of being reprehensible or unreasonable, costs are potentially payable’, Hale LJ went on summarise the law (which the parties agree still pertains) as follows:

Whilst I have also carefully considered all the authorities cited by Dr Proudman in her skeleton argument, I have sought principally to examine the issues in the case in the light of those ten principles of law extracted and discussed by Hale LJ in R v R.

Dr Proudman summarises the findings of fact in this case in a schedule to her skeleton argument. Not all the allegations against the father made by the mother were upheld in my fact-finding judgment. Moreover, I made several findings in favour of the father in respect of his allegations against the mother. It is, however, correct to say that I found more of the mother’s allegations proved than those of the father. Significantly, I found that the mother had proved allegations which had not been included in the previous order of 27 October 2020 to which I refer in my fact-finding judgment at [3]:

These proceedings have been very lengthy. For most of that period (during which the parties and the court were seeking to advance arrangements for contact between the father and the child, A, without the need for a contested hearing) the parties were always aware that any fact finding which might take place would proceed from the factual baseline established by the order of 27 October 2020. That order had never been successfully appealed and I emphasised at several interim hearings that I did not intend to go behind the schedule of agreed findings of fact. It followed that, given that cohabitation had broken down completely by March 2019, any additional fact finding would be confined to the subsequent limited contact between the parties which had been incidental to the father spending time with A.

I do not propose to discuss the 2020 schedule of facts in detail here. Suffice it to say that (i) I found for the mother in respect of certain allegations which do not appear in the agreed schedule and; (ii) the schedule generally presented a picture of a relationship in which both mother and father had at times behaved badly towards the other. I am aware that such an ‘equality of fault’ was not at all reflected in my fact finding judgment.

Towards the end of 2024, it became clear that the existing contact order had become unworkable and that a final hearing of the father’s application to enforce that order would be necessary. It was at this point that the father, through his counsel, informed the court that he did not seek to rely on the 2020 schedule. I was told that he considered that matters between himself and the mother and his ongoing contact with A would never be satisfactorily resolved if the mother’s dissatisfaction with the schedule and the circumstances in which she believed she had been pressurised to agree to it were not fully addressed. I was told that the father and the mother now wished the court to make fresh and comprehensive findings of fact on all their respective allegations. Although, as I had stated repeatedly, I had not intended to revisit events prior to 2020, I considered that it was the parties’ prerogative to reject the schedule and I directed a comprehensive fact-finding hearing to consider the entire period of the couple’s relationship. That hearing took place in Manchester and London in January 2025.

Returning to Hale LJ and R v R, I am aware that I exercise (consistent with the overriding objective (FPR 1.1 and 1.2) a wide discretion as to costs following the fact finding hearing and that ‘the general rule that costs follow the event does not itself apply to fact-finding hearings.’ As I note above, the mother proved more allegations against the father than vice versa. For there to be an award of inter partes costs, there must be some ‘form of unreasonable conduct’ and ‘ the court should determine the extent to which the determination of the adverse findings contributed to the cost of the hearing.’ In the present case, both of those latter factors are present for the same reason. As I said at the final hearing, the father’s decision to abandon the 2020 schedule of facts was, in essence, a gamble on his part. It seems likely that he believed that the court would agree with him, and not the mother, regarding the allegations. His gamble did not succeed. Whilst some of his allegations were upheld, many were not. I found for the mother on several allegations which the father would not have needed to answer had he relied on the schedule. Ultimately, his decision to abandon the schedule amounted to ‘litigating in an unreasonable fashion’ (see Re N (A Child) v A and Others [2010] 1 FLR 454 and Hale LJ’s ‘second approximation’) because it was a decision which contributed significantly to the costs of the hearing.

Whilst I acknowledge that ‘adverse findings’ may ‘trigger’ my discretion to make a costs order, I am aware also that ‘it does not automatically follow that after a fact finding hearing the party against whom allegations are proved must pay the legal costs.’ Whilst the conduct of the father towards the mother in the course of their relationship has been reprehensible, it does not necessarily follow that his conduct of the subsequent litigation should be categorised as unreasonable simply because he ‘lost’ at the fact finding hearing; if that were so, there would be no need to identify unreasonable conduct as costs would simply follow the event. However, the fact-finding hearing took as long as it did largely because of the father’s conduct in choosing to reopen matters which had already been adjudicated. It is important that my order should reflect that fact.

The mother seeks her costs of the fact-finding hearing and not the proceedings leading up to it. Ms Shield objected to the quantum of those costs. Dr Proudman’s fees are, indeed, considerable but I am aware that (i) she has, on direct access instructions, put a great deal of work into the preparation and presentation of the mother’s case (as, indeed, has Ms Shield for the father) and (ii) Dr Proudman is a renowned practitioner in this area of private family law and her fees clearly reflect that fact. In the circumstances, I do not propose to reduce Dr Proudman’s fees for the final hearing (£34,515 + VAT). I agree with Ms Shield, however, that the reasons for incurring the additional fees of Ms Page for ‘witness statement assistance - £5,580 + VAT’ are not clear. I will not order the father to pay any part of those latter fees.

It remains for me to draw together the various threads which I have discussed above and to exercise the discretion available to me in reaching a decision on costs which is fair, reasonable and in accordance with the jurisprudence and the overriding objective. I order that the father shall pay 35% of the Dr Proudman’s fees for the final hearing including VAT, which is a total sum of £14,496.30. The father shall have 28 days (starting on the date upon which he receives the sealed order) to pay those costs.

I reiterate my thanks to counsel for the parties and I look forward to receiving a draft of the final order for approval in due course.