Re J (children)

JurisdictionEngland & Wales
JudgePATTEN,LINDBLOM,PETER JACKSON LJJ
Judgment Date04 July 2019
CourtCourt of Appeal (Civil Division)

Publicity – Costs – Media’s costs awarded – Whether unprincipled to award costs to media in case concerning naming abductors.

Following the decision by the Court of Appeal to uphold the dismissal of the mother’s application to remove the two children to Ukraine, the parents mediated about the mother’s stated wish to take the children to Ukraine to spend a month there, with the mother’s new baby and her new husband. The parents’ proposals for this trip were embodied in a detailed consent order, providing, among other things, for the mother to lodge £1 million with her solicitors as security for the father’s costs in the event of the mother failing to return the children as set out in the order (other than for reasons beyond her control). Although attempts by the mother’s husband and the maternal grandfather to obtain injunctions in Ukraine to prevent the children from leaving Ukraine were unsuccessful, the mother did not allow the children to leave Ukraine, and the children remained there in breach of repeated orders of the English High Court. The £1 million security was transferred to the father by the mother’s solicitors, under a court order. The High Court judge found that the mother and the maternal grandfather, who he described as being deeply complicit, had acted in concert to obtain the father’s consent and the court’s approval for the holiday, without ever intending to return the children.

After successfully obtaining return orders from the English court, the father also applied for, and obtained, an order providing for the mother, the mother’s husband and the maternal grandfather to be publicly named in the judgment. The judge ordered the mother to pay the father’s costs on the standard basis and provided for the grandfather to be jointly and severally liable for half this liability. He refused a separate application by the father for an order relating to the costs of the children’s guardian, who had been appointed on the basis that her costs would be met from the £1 million fund. The mother and maternal grandfather then made applications of their own, seeking redaction of certain passages in the judgment. These applications were refused, and the judge made a second costs order, providing that the mother and grandfather were to be jointly and severally liable for the costs of the father and of the media organisations.

The mother and grandfather appealed from both costs orders. Both argued that the judge had no power to make any order for costs: firstly because of the terms of the original consent order; and secondly because in any event the judge had taken the wrong approach to making a costs order in a case concerning the children. The maternal grandfather also argued that he should not have been ordered to be jointly liable for the costs incurred by the media.

The father eventually issued a late application for permission to cross-appeal out of time, seeking to challenge the judge’s decision to award costs on the standard rather than indemnity basis and also the decision not to make an order for costs in favour of the guardian, which had led to the £1 million security fund being reduced by almost £200,000. From 4 June 2019 an order had provided for the guardian’s costs to be met by the parents equally. The father complained that it was unfair that he should in effect be responsible for the guardian’s costs between October 2018 and June 2019 as a result of payments being made from a fund that had been established for his protection.

Held – (1) The judge had been called upon to exercise a principled discretion under r 28(1) of the Family Procedure Rules 2010, which provided that the court could at any time make such order for costs as it thought just. This court would be very slow to disturb any order for costs and would do so only where a relevant error of principle had been demonstrated, so that the order had been shown to be wrong. It would not interfere with the trial judge’s discretionary decision in any other circumstances. That was the context in which the grounds of appeal must be considered (see [7], below).

(2) The consent order had provided for a security or fighting fund; it had not disabled or suspended the normal powers of the court. As a simple matter of logic, the fact that a fund could only be used to meet a specific purpose did not mean that this specific purpose could only be met by using the fund. Had the parties wanted to try and make the provision of the security fund a substitute for the normal powers of the court, they would at least have had to make that explicit. Even if they had done so, it was questionable whether a court should approve an agreement to fetter its powers in this way. This ground of appeal was sterile in any event. No one was suggesting that the mother and maternal grandfather should pay twice. The father could not enforce the costs order against any other asset belonging to the mother and maternal grandfather, to the extent that he had already been reimbursed for the same sums from the fund (see [14], below).

(3) The judge’s treatment of the question of costs in children cases had been broadly unassailable. He had correctly set out the general ‘no order’ approach. The analogy that he had drawn with financial proceedings had not been of assistance; neither had his observation about enforcement proceedings being of themselves a demonstration of misconduct. The court would not agree with either proposition as a statement of principle; insofar as the judge might have considered that they were statements of principle, it was clear that they had been superfluous to his decision. They had been unnecessary passing observations that did not show his overall approach to be wrong. The judge had clearly appreciated the normal rule and the need to establish departure from it. In this case, departure had been comprehensively demonstrated by misconduct that was integral to the litigation. The decision to make an order for full costs against the mother and half costs against the maternal grandfather was unexceptionable. The court specifically rejected the attempt by the maternal grandfather to minimise his responsibility for the current situation; the judge had found the maternal grandfather to be complicit in the abduction from the start and that finding was not open to challenge on this appeal. Likewise, the court was not impressed by the submission that there had been no significant litigation misconduct by the maternal grandfather. That was not the point in circumstances where the entire litigation was a direct result of the course pursued by the appellants. Insofar as the primary responsibility rested with the mother, that had been appropriately reflected in the differentiation between the order in her case and the order in the grandfather’s case. In fact, there was nothing remotely surprising, let alone extraordinary, about the orders made in this case. Indeed, the court found it difficult to envisage any proper alternative. These costs had been incurred in an attempt to recover a situation created by the flagrant flouting of a court order. The costs orders were not intended to penalize but to...

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