N (A Child), Re

The judgment in this matter was sent to the parties in its final approved form on 6 January 2009 and handed down in public on 20 January 2009: Re N (A Child), G v A [2009] EWHC 11 (Fam).

I gave directions set out in an order dated 6 January 2009 the terms of which were annexed to my judgment. Paragraph 9 of that order required each party to file and serve by 16 January 2009 a succinct statement (not exceeding four sides of A4 paper) setting out (a) precisely what order for costs (if any) they were seeking and (b) the reasons why they said such order should be made. The order went on to provide that I would decide what order(s) for costs should be made following such brief oral submissions as either party might wish to make at a hearing on 20 January 2009.

The father complied with that direction, filing his submissions on 16 January 2009. The mother did not, sending me on 19 January 2009 (the day before the hearing) a note which said that she would need to obtain information from her previous solicitors as to the costs, which were substantial, and to establish which costs related to the Schedule 1 and which to the section 8 proceedings. (As the father points out in his final submissions, the mother did not in fact provide any information whatsoever about her own costs in the submissions which she eventually filed on 9 February 2009. Even now, as he says, there is no indication, not even the roughest of estimates, of what actual costs the mother has incurred in the Schedule 1 proceedings. He goes on to aver that the mother’s application for an adjournment was a “fake” and simply a device to see his submission first and to “get round” the direction I had given. The mother, he says, has deliberately put me in the difficult position of trying to do justice in costs without any idea of what her costs actually are, presumably because she hopes to get some advantage by so behaving.)

In the upshot I had no alternative but to postpone consideration of the costs. I made an order on 20 January 2009 adjourning the issue of costs on the basis that the mother was to file any submission she wished to make by 13 February 2009 and that the father might file further submission in reply within 14 days. My order recited that the parties consented to me deciding all questions of costs on the written submissions without necessity of an oral hearing.

The mother’s submissions were filed on 9 February 2009. The father’s followed on 18 February 2009.

It will be recalled that in my judgment I identified the father as having raised nine points, which I referred to as (1) to (9) respectively. The mother raised five points which I referred to as (A) to (E) respectively. The relevant paragraphs in the judgment are as follows: (1) [26], (2) [27]-[28], (3) [29]-[30], (4) [31]-[33], (5) [34]-[36], (6) [37]-[39], (7) [40]-[41], (8) [42], [58]-[81], (9) [43]-[44], (A) [46]-[47], (B) [48]-[49], (C) [50]-[51], (D) [52]-[53], and (E) [54]-[57]. There was also an issue as to jurisdiction: [82]-[91].

I should add that, as set out in my order of 20 January 2009, I refused the father permission to appeal on the one point (issue (1)) on which he had sought permission. The father has renewed his application to the Court of Appeal and has sent me his grounds of appeal dated 3 February 2009. He tells me that the hearing of his application for permission is listed for 18 March 2009.

The father, as I have said, has a pending application before the Court of Appeal for permission to appeal in relation to issue (1). He tells me that he asked Dr Pelling to request the mother, via her McKenzie friend Mr Holden, to agree to postpone the final costs decision pending the outcome in the Court of Appeal. He assumes (his expression) that I would not object if both parties agreed but says that, so far, no agreement has been forthcoming. So he asks me to postpone my decision to await the outcome in the Court of Appeal. Referring to his grounds of appeal he submits that there is an arguable case and that the Court of Appeal “may well” grant permission to appeal, in which case, he says, “it would surely be better to wait”, for if the appeal succeeded then the Court of Appeal could be asked simply to remit the question of costs in relation to issue (1) back to me as part of all the costs. The father reiterates that stance in an email dated 2 March 2009.

I decline the father’s invitation, and would have adopted the same stance even if both parties had agreed. My decision on the costs to date has nothing to do with the proceedings in the Court of Appeal and cannot be affected by the outcome of those proceedings, whatever that may be – a matter on which I refuse to join the father in his speculations. I should decide the matter of costs now, and in accordance with the directions I gave on 20 January 2009.

The father’s submissions as filed on 16 January 2009 are succinct and to the point. He says that his costs of all the financial and enforcement applications dealt with by me in my judgment should be summarily assessed together in the total sum of £2,500 to be paid by the mother within 28 days.

He sets out his reasons as follows: He says that the various applications made by the parties were all interlinked and dealt with finally by me together at the same hearings and in the same judgment. It is manifest from the judgment and order, he says, that he substantially succeeded both in resisting the mother’s applications and on his own applications. It would not be reasonable to waste time and money constructing detailed bills or schedules of costs in relation to each and every application. He asks me to take a broad-brush approach and award him summarily a fixed sum reflecting his substantial success. He says that he has spent well over 300 hours personally in dealing with all the various matters from beginning to end and additionally spent £8,084 on legal advice from counsel, including instruction costs. He suggests that, as the mother has had what he calls “some limited success”, a global sum of £2,500 for his costs is just and reasonable in all the circumstances.

Specifically he makes the following further points:

He says that he succeeded in his major application to amend paragraph 2 of District Judge Roberts’s order. He succeeded on the trustee question (issue (5)). The mother failed in her application to have trust monies paid directly to her (issue (6)) and to be sole trustee or in sole control of the trust. He succeeded on the age ‘21 vs 18’ point (issue (8)), which he says occasioned much research of authority, and also succeeded on the related jurisdiction point, namely whether procedurally the court could or should alter the District Judge’s order. He succeeded in obtaining what he calls sensible procedural provisions in connection with the Deed of Settlement (issues (6), (C) and (D)).

Although he failed in his application to alter the due date for payment of the lump sum ordered by paragraph 1 of the order, he did succeed on the important and resisted issue of a proper account for the money by the mother, with receipts, and on his right to interest and the return of unused money (issues (2), (3), (4) and (7)).

The mother’s application for a charging order in relation to one of the properties failed.

The mother’s application for charging orders in relation to the large sum of £220,000 failed (issue (E)), as did the same application for charging orders to secure the school fees he had been ordered to pay by paragraph 3 of the order (which fees, he says, were not in arrears).

The mother did succeed in her application for a charging order in relation to the other property, but only to the limited extent of securing the £20,000 lump sum plus interest (issue (B)).

However, he succeeded in gaining an order for non-enforcement of that charging order prior to exchange of contracts for the purchase of the settlement property.

The mother failed on her summons for the appointment of a receiver by way of equitable execution (issue (E)).

Although I made an injunction against dealing with the property, this was on the court’s own motion, not having been applied for by the mother, and he succeeded in limiting the effect of the injunction by the insertion of a saving permitting the granting or ending of assured shorthold leases.

He further submits that it should also be taken into account that the mother was represented by solicitor and counsel whose conduct and procrastination of the case, he says, leaves much to be desired. Instead of producing a draft Deed of Settlement in early 2006, and dealing promptly with the settlement process in the normal way, they pursued what he characterises as unwise and unnecessary enforcement measures which sought, contrary to accepted practice, to place funds into the mother’s sole control. What he calls the July 2007 “afterthought Deed” sought no real change, the mother still seeking, immovably, the ultimate control of £220,000 without genuine protection of his reversionary interest, thus, as he puts it, forcing him into unavoidable and expensive conflict. Had he substantially failed then, he says, doubtless the court would hit him with massive costs, so reciprocally, having substantially succeeded, he should be awarded costs.

The mother’s submissions, as filed on 9 February 2009, first addressed each issue in turn, identifying what, on her view, had been the outcome in terms of ‘winner’ and ‘loser’. She says that the father lost on issues (1), (3), (4) (only items in excess of £10 requiring receipts) and (6); that although he had succeeded on (2) this was of “little consequence”; that he had been only partly successful on (5) and (7) (though observing that he had lost on the ‘cut-off date’ point); that although he had succeeded on (8) it made little difference, because in any event the provision would continue, as before, until N completed his tertiary education; and that on (9) the order I made “appears to be in line with mother’s view.” For her own part, the mother says that she succeeded on issues (A), (B) (albeit with a postponement), (C) and (D), failing only on (E).

Overall, the mother says, on the majority of issues the father was unsuccessful.

The mother then made four further submissions:

First, she invites me to consider the father’s behaviour and what she calls his contempt for the court, referring in this connection to what I said in my judgment at paragraphs [85]-[90]. She says that the father chose not to attend the hearing before District Judge Roberts, seemingly deliberately, and then applied to amend that order. He could, she says, have argued his case then, but instead displayed utter contempt for the court, causing her considerable additional costs (at one point including the costs of solicitors and counsel) having to litigate matters that could have been heard earlier. The father, she says, has a history of coming back to court with what she calls all sorts of spurious arguments, referring in this context to what I said in paragraph [90] of my judgment.

Next, she submits that there was no justification for the father making any of his applications, save only for the one matter in relation to the point of principle – a matter, she says, that alone could have been dealt with between the parties had the father not been, as she puts it, so determined to continue and maintain the litigation.

On the other hand, she says, she was entitled to make her application which was substantially to enforce the order of District Judge Roberts in circumstances where, she says, the father had simply ignored the order.

Next, she submits that, since the father is representing himself, he is not entitled to costs. Of his assertion that he had counsel’s advice, she comments that he does not explain how he was able to do so without going through a solicitor. This appears, she says, to be somewhat disingenuous. And with regard to the time spent, allegedly, by the father, she submits that this is not quite true. He may have spent time typing, but the truth, she says, is that the bulk if not all of the work was done by Dr Pelling. She refers in this context to what I said paragraph [66] of the judgment.

In conclusion the mother submits that she is entitled to her costs entirely, with a minimum contribution of 50% of her costs. She says that there should be detailed assessment of her costs if not agreed.

The father, by way of riposte in his final submissions dated 18 February 2009, differs from the mother in her analysis of who was the ‘winner’ and who the ‘loser’. Issue (2), he says, was of consequence because it supported the (successful) case for accounting. He disputes that he lost on issue (3), for, he says, he succeeded on the accounting point – the key issue – which had been strongly resisted by the mother; the issue as to four months as opposed to reasonable time was, he says, minor in this context. In relation to issue (4), he says that he succeeded on the issue of substance, namely that there should be accounting by provision of receipts. That items less than £10 could be omitted is, he says, de minimis, not least given that, in the nature of the exercise, the vast majority of expenditure is likely to be on rather more expensive items and moving costs. In relation to issue (5) he says that he was fully successful on the important issue. In relation to issue (6) he disputes that he lost, given that I declined to decide the point. In relation to issue (7) he says that, although a defined cut-off date was refused, I protected him by giving him a liberty to apply and making it clear that a cut-off date might have to be imposed in the future, referring in this connection to what I had said in paragraph [44] of the judgment. In relation to issue (8) he points out that he had never opposed the extension to tertiary education, the issue, resolved in his favour, being whether the relevant age is 21 or 18 in the event that N does not in fact go on to higher education. In relation to issue (9) he says that it was de minimis – he had assumed that “implementation” ipso facto included “timing” but is grateful for the express inclusion of the latter.

In relation to issue (A) the father says that this was not an extra success for the mother since, following the decision on the date of payment, the right to interest arose by operation of law. In relation to issue (C) he says that she did not obtain what she had sought initially – which was simply “hand over the money to me” – a position which through his efforts, he says, she had to accept was untenable. Issue (D) was, he says, a minor issue in terms of time spent and was not opposed by him.

Overall, the father disputes the mother’s assertion that on the majority of issues he was unsuccessful. The real outcome, says, was in fact the exact opposite.

In relation to the mother’s other submissions the father responds as follows:

He doubts if this raises a valid costs point. He points out that the mother did not seek a wasted costs order against Dr Pelling and says that the fact remains that he succeeded on what I note he calls “a difficult procedural strategy” which the mother strenuously but unsuccessfully opposed and then went on to succeed on the point of substance which again she had unsuccessfully opposed. He rejects her analysis of his non-appearance before District Judge Roberts, saying that it is fallacious. He does not seek to re-argue his medical unfitness. But it remains the fact, he says, that a 5 day hearing before the District Judge – this was for the section 8 claim as well as the Schedule 1 claim – was cut to 2 days at most, and he has paid the whole of the costs (including of the section 8 claim) incurred by the mother before District Judge Roberts under the order she made. It is, he says, completely speculative as to whether the District Judge would have made different orders had he attended; if for example the 21 vs 18 issue had been fought out then, the result, he suggests, might have been the same – 21 – and then further costs might have been incurred on a successful appeal to achieve substitution of 18. So, he says, the net total might have been worse for the mother in terms of costs had he attended (and, he adds, had he attended, then, on the usual principle, she would not have got her costs of the section 8 proceedings). Finally, he says the mother’s reference to paragraph [90] of my judgment is a “blatant misquotation out of context” of what I actually said.

The father’s submissions on this point are subsumed in his submissions under (i).

He says that the mother’s contention here is “not quite” my view, referring in this context to what I said in paragraph [38] of the judgment.

He says that litigants in person are of course entitled to costs under the Litigants in Person (Costs and Expenses) Act 1975 and the relevant provisions of the CPR. The cost of counsel’s advice is claimable; he did go through a solicitor and has provided a bill which proves this. If the court permits representation by an advocate then the costs of that would also be claimable. He says he worked closely with Dr Pelling and did not just delegate stuff to him.

The father reiterates that a summary assessment is more appropriate and submits that indeed by the CPR Costs PD paras 13.1 and 13.2 that would appear to be the normal course, given that the final hearing on 12 November 2007 occupied only about half a day. He stands by his initial submission of 16 January 2009 with this one major qualification: If I reject a summary approach then equally he wants all or a major proportion (at least 80%) of all his own costs on a detailed assessment, rather than the modest global net sum of £2,500; he will put in his full bill for all costs paid, to include the cost of advice from counsel, his own time (with pecuniary loss claimed at two-thirds of a solicitor’s rate), and the service provided by Dr Pelling by way of court approved advocacy and related work (in which context he refers me to section 27(10) of the Courts and Legal Services Act 1990). On that footing he says that there would be a claim in the order of at least £38,000 instead of the compromise net figure of £2,500. This is based, he says, on counsel’s advice costing £8,084 and 300 hours at two-thirds of a solicitor’s rate of £150 per hour.

This is a case in which, at least in relation to some matters, neither party has acted with very much wisdom or common sense: see, for example, what I said in paragraph [38] of my judgment. And despite their strenuous arguments to the contrary, this is not a case in which either party can plausibly claim to have been the winner overall. Indeed, the very fact that each can make the claim yet without appearing completely ridiculous suggests of itself that the truth lies somewhere in the middle. And the fact that the father, not usually moderate in his approach, should be claiming, albeit by way of what he calls “compromise”, a sum of only £2,500 when he says his total costs amount to some £38,000 leaves one wondering how confident he really is in his assertion that his success was substantial whilst the mother’s was only partial.

I do not propose to embark upon some detailed analysis of the outcome on every issue and sub-issue. It suffices for present purposes, and to give the flavour of the forensic realities as I see them, focussing for this purpose on the more important issues, to note that the father lost on issue (1), that the father succeeded in substance on the accounting point but failed on the ‘cut-off’ point, that the mother failed in her attempt to obtain sole control of the £220,000, that the trusteeship as I defined it was not in the form that either party had wanted, that the mother obtained security and protection in relation to both the £20,000 and the £220,000, albeit not in all respects in the form she had been seeking, and that the father succeeded on the ’21 vs 18’ point and the related jurisdictional issue – a point of undoubted importance as a matter of principle but of whose practical significance I am somewhat sceptical given the likelihood, as I see it, that N will probably go on to some form of tertiary education.

The mother was plainly wrong, as the father correctly points out, in disputing his right as a litigant in person to recover costs.

I have considered the father’s behaviour as referred to by the mother but do not think that, in all the circumstances, it is a factor which should affect the outcome, not least bearing in mind the father’s points as I have set them out in paragraph [21(i)] above.

This is not the kind of case where it would be appropriate to make an ‘issue-based’ costs order. The reality is that in this kind of case the court has to adopt a broad-brush approach. Indeed, that is precisely the approach which, as we have seen, the father invites me to adopt.

I have to have regard to all the circumstances of the case, having regard not merely to the important question of who won or lost on which issues but also to such matters as the relative time and cost taken up by the various issues and the overall importance or otherwise of the individual issues in the wider scheme of things.

In all the circumstances I have concluded that the fair, just and reasonable outcome is that there should be no order as to costs. If I leave the costs to lie where they fall that will, in my assessment, best reflect the overall justice of the case and best reflect the reality that each party won on some but lost on other important issues and that neither party can convincingly put themselves forward as having been, even on balance, the ‘winner’.

I shall accordingly direct that in relation to the Schedule 1 proceedings since Sumner J made his order on 9 December 2005 there shall be no order as to costs.