Re B (Indemnity Costs)
| Jurisdiction | England & Wales |
| Judgment Date | 2008 |
| Year | 2008 |
| Date | 2008 |
| Court | Court of Appeal (Civil Division) |
Costs – Indemnity costs – Judge requiring mother to provide documents supporting her non-attendance at court – Mother sending documents to Principal Registry of Family Division – Judge not receiving documents due to administrative error – Judge ordering mother to pay indemnity costs – Whether judge in error.
The children had moved to Spain with their mother following the breakdown of her marriage to their father, who resided in the United Kingdom. The parents had entered into an agreement allowing for that move, for the father’s contact with the children, and for financial support. Solicitors acting on behalf of the mother and father made arrangements to finalise that agreement but following her move to Spain, where she and the children lived with her new partner, the mother reneged on that agreement, and withdrew her instructions from her solicitors. The father instituted proceedings pursuant to the Children’s Act 1989, inter alia, for a contact order, but the mother failed to respond to email correspondence relating to the case, and when she became pregnant she failed to attend hearings. A district judge made an order requiring the mother to send to the court, and to the solicitors in the case, a medical certificate and letter explaining why she could not attend court. The mother sent a letter attaching a medical certificate to the Principal Registry of the Family Division. She further sent a letter informing the father’s solicitor of that fact. At a subsequent hearing, the mother failed to attend and the district judge made an order for costs, on an indemnity basis, in the amount of £24,000, following his finding that the mother’s unreasonable conduct had resulted in increased costs. At a further hearing, investigations revealed that due to an administrative error the medical certificate and letter had not been transmitted to the district judge. The mother appealed against the costs order. She submitted that the judge had erred in making the order for costs in the light of the fact that she had complied with his earlier order to submit a medical certificate and letter.
Held– The district judge had proceeded on the erroneous assumption that the mother had not complied with his earlier order to supply a medical certificate and letter. The consequences were fundamental in that the erroneous conclusion was an important ingredient in the exercise of his discretion to make an order for costs, which, in the instant case, was unthinkable bearing in mind the fact that orders for costs were extremely uncommon in proceedings pursuant to the 1989 Act, and the fact that the
conduct forming the basis of complaint by the father, had to be put into the context of the change and intervening circumstances in the mother’s life. The order for costs would be set aside. Accordingly, the appeal would be allowed.
Case referred to in judgmentT (a child) (order for costs), Re[2005] EWCA Civ 311, [2005] 1 FCR 625, [2005] 2 FLR 681.
AppealThe mother appealed against the decision of the judge whereby it was ordered that the mother should pay indemnity costs. The facts are set out in the judgment of Thorpe LJ.
The mother appeared in person.
Sarah Phipps for the father.
THORPE LJ.[1] The second stage of Mrs H’s application for permission to appeal the order of Judge Bradbury of 5 December 2005 has taken rather longer than it ideally should have done because of the fairly chaotic state of the papers in the case, and I express gratitude to the father’s solicitors, Messrs Charles Russell and Co, who have prepared for us a paginated bundle of something recently submitted by Mrs H, which is said to be the appeal summary. It contains some 250 pages, which I suppose are to be taken to be in addition to the appeal bundle which was before me when I dealt with the case in court on 10 May 2006. It is...
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Ms M v Mr F (1st Respondent) Mr H (2nd Respondent)
...to be are two different questions (see [25]–[28], below). Cases referred to in judgmentB (indemnity) (costs), Re[2007] EWCA Civ 921, [2008] 2 FCR 327, [2008] 1 FLR 205. D (a child), Re[2005] UKHL 33, [2005] 2 FCR 223, sub nom Re R (a child) [2005] 4 All ER 433, sub nom Re R (a child) (IVF: ......