Re N (Payments for benefit of child: costs)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Munby |
| Judgment Date | 13 March 2009 |
| Neutral Citation | [2009] EWHC 484 (Fam) |
| Court | Family Division |
| Date | 13 March 2009 |
| Docket Number | Case No: FD03P02333 |
[2009] EWHC 484 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION (In Private)
Before : Mr Justice Munby
Case No: FD03P02333
Applications in relation to costs dealt with on paper
The Applicant G in person assisted by her McKenzie friend Mr David Holden
Dr Michael Pelling (of Bance Commercial Law) for the Respondent A
This judgment was handed down in private but the judge hereby gives leave for it to be published in this form
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.
The judgment
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.
A preliminary point
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 parties' submissions on costs
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:
i) 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)).
ii) 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)).
iii) The mother's application for a charging order in relation to one of the properties failed.
iv) 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).
v) The mother did succeed...
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...Re N (McKenzie Friend: Rights of Audience) [2008] EWHC 2042 (Fam), [2008] 2 FLR 1899, Re N, A v G [2008] EWHC 2134 (Fam), Re N (Payments for Benefit of Child) [2009] EWHC 11 (Fam), [2009] 1 FLR 1442, Re N, G v A (No 2) [2009] EWHC 484 (Fam) and Re N, A v G [2009] EWHC 1663 (Fam). I do not......