T v T

On 29 March 2004 I heard an application by the Applicant father, Mr T for permission to take his 10 year old son M to the USA for Easter. The application was opposed by the mother, Mrs T.

At the hearing the father appeared by counsel, Mr Hosford-Tanner. The mother appeared in person. The dispute was resolved when the father gave an undertaking in relation to the number of times that he would take M to the USA in 2004.

The father claimed his costs of coming to court. The mother resisted this. There was insufficient time to resolve this at the hearing. The parties agreed that my determination of the question of costs might be resolved upon their written applications.

Each side made written submissions on the question of costs. By a judgment handed down on 11 May 2004 I held that the mother should pay one half of the costs incurred by the father. At that time they were estimated at £5,000. I indicated that I would determine the sum to be paid when I had seen a summary of those costs.

The father’s solicitors sent a statement of costs. It is dated 30 April 2004. It is in the total sum of £8,481, of which some £1,200 or so is in respect of VAT.

A copy of that statement of costs was sent to the mother. She responded by letter dated 13 July 2004. She had already sent the father’s solicitors a letter of 10 June 2004 from The Costs Partnership.

In the letter of 10 June 2004 the extent of the costs claimed is criticised. They were said to be exceptionally high and disproportionate. An appropriate figure was said to be not £8,481 but £4,254.

The father’s solicitors have responded to those criticisms shortly. By letter of 23 July 2004 they say that The Costs Partnership have not been informed of 2 matters in particular. Firstly there is the long and acrimonious history in relation to M. Secondly the mother had been formerly represented herself by solicitors.

It is said by the father’s solicitors that the objections made can be answered in full. It would however increase costs. It is suggested therefore that there should be a detailed assessment, though this might increase Mrs T’s costs liability.

I am concerned about this whole question of costs. If I permit either a lengthy response or a detailed assessment costs will increase by many hundreds of pounds if not more.

I have to consider the nature of the litigation. There was correspondence between the parties acting in person between 22 December 2003 and 16 March 2004. It is quite extensive. It covers areas other than whether the father could take M to the USA at Easter. It enabled the father’s solicitors to write their first letter on 22 March 2004 quite shortly.

They pointed to the letters in which this had been mentioned and the relevant part of earlier court orders. They said counsel had confirmed that the father was entitled to take M to the USA at Easter. The mother’s refusal was unreasonable. She was asked to reconsider her position. She was informed that an application had been made with a return date of 29 March. They wrote one further letter before the application in relation to another specific period of contact.

The father’s application was dated 3 days earlier on 19 March. It was supported by an affidavit of 3 ½ pages of 25 March 2004. It exhibited the correspondence to which I have referred. It was followed by the hearing on 29 March when as I have mentioned the father was represented by Mr Hosford-Tanner of counsel.

Given that background I am of the clear view that I should now assess the quantum of costs. I bear in mind that the father’s solicitors would wish to respond at length to the letter from the costs draughtsman. The course I am proposing will deny them of this opportunity.

I also bear in mind the Civil Procedure Rules 1998. Thus under paragraph 13.2 of the Practice Direction About Costs to Parts 43-48 of CPR 1998 states:

“The general rule is that the court will make a summary assessment of costs:

(2)

at the conclusion of any other hearing which has lasted not more than one day, in which case the order will deal with the costs of the application or matter to which the hearing related. If this hearing disposes of the claim, the order may deal with the costs of the whole claim;

(3)

………..unless there is good reason not to do so e.g. where the paying party shows substantial grounds for disputing the sum claimed for costs that cannot be dealt with summarily or there is insufficient time to carry out a summary assessment.”

Also I have regard to 44.5 –

“Factors to be taken into account in deciding the amount of costs:

44.5

(1) The court is to 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)

were proportionate and reasonable in amount,

b)

if it is assessing costs on the indemnity basis –

i)

unreasonably incurred; or

ii)

unreasonable in amount.

(2)

The court must give effect to any orders which have already been made.

(3)

The court must 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; and

g)

the place where and the circumstances in which work or any part of it was done.”

I have considered paragraphs. 11.1 to 11.11 of the Practice Direction about costs.

Looking at the totality of the matter, I am satisfied that on the papers presently before me I can do justice between the parties without further expense being incurred. In a straight forward application such as this the general rule should prevail.

I therefore turn to the father’s statement of costs. I do so on the basis that the father’s solicitors needed to read the correspondence between the parties carefully, consider the father’s arguments, write one long and one short letter to the mother, prepare his statement, and prepare for and attend at the hearing with counsel. I bear in mind this is a summary assessment.

The mother should only pay such sum as is proportionately and reasonably incurred. The question is what is a reasonable sum in relation to the background as I have summarised it and proportionate to the short issue in dispute. It is not a question of whether the work was carried out by the father’s solicitors but the extent to which the mother should pay for it.

I have been carefully through the Statement of Costs. I note that in a straightforward application with no correspondence before issue of proceedings, 2 fee earners at £350 an hour were engaged. Much of the work could properly have been done by a junior fee earner.

The work undertaken with the Applicant and by counsel was more extensive than the mother should pay for given the background. The statement could reasonably have been settled by solicitors. A written advice from counsel was more than the mother should have to pay.

I have looked at the work reasonably required to be done and the reasonable level of the fee earner. In my judgment the amount claimed on behalf of the father payable by the mother should be substantially reduced if it is to be proportionate to an application concerned with the simple interpretation of an order.

Looking at the whole matter in the round I have determined that the reasonable sum for the father’s costs which the mother should pay is £5,000. The mother will accordingly make a contribution of £2,500 or one half of that sum.