F (A Child), Re

In family proceedings, the usual no-order approach to costs may be displaced by a party’s improper conduct. The court must nevertheless consider all material circumstances, including whether each party had a reasonable basis for bringing allegations and whether the other party’s allegations failed.

An award of indemnity costs for the whole proceedings requires careful scrutiny. A judge should not summarily assess a substantial bill on an inadequate schedule without examining the work undertaken and the relevance of interlocutory, consent or compromised orders. Where a detailed assessment would be disproportionate, an appellate court may substitute a fair sum assessed broadly from the available material.

The father sought a residence order after his son reported that the mother’s partner had squeezed his penis. The mother sought defined and supervised contact and made an application under section 91(14). Although a jointly instructed psychiatrist initially considered that sexual abuse had occurred, the judge found that neither the father nor the partner had sexually abused the child. She dismissed the residence application.

Afterwards, Her Honour Judge Coates ordered the father, in his absence, to pay the mother’s costs on the indemnity basis. She assessed them at about £119,000. The father renewed his application for permission to appeal that costs order. The issue was whether the costs discretion and the summary assessment had been properly exercised.

1. Permission was granted and the appeal allowed. Ward LJ, with whom Wall LJ agreed, held that the judge’s adverse findings about the father’s harassing and manipulative conduct could not be reopened on appeal. Those findings were capable of justifying some departure from the usual no-order approach in family proceedings.

2. The discretion had nevertheless been exercised without accounting for material matters. The father had a proper basis for raising the apparent injury and allegations concerning the child. The mother’s counter-allegations against him were also not established. The father had established, albeit on a minor point, that the partner had engaged in unwanted spanking games. The litigation was therefore not wholly one-sided. The appropriate order in principle was that the father should pay half of the costs.

3. The judge also erred in ordering indemnity costs for the entire proceedings and assessing a substantial bill immediately from a bare schedule. The schedule did not identify the work or when it had been done. The judge had not examined the numerous interlocutory applications, including consent and compromised orders. Those matters would ordinarily call for no order as to costs, or at least would not themselves justify indemnity assessment. The proper course in principle was a detailed assessment.

4. A detailed assessment would, however, be disproportionate in the circumstances. Taking the available figures broadly and in the round, the court substituted an order that the father pay costs assessed at £50,000, rather than the approximately £119,000 ordered below.

• Court of Appeal (Civil Division): By [2008] EWCA Civ 938, permission was granted and the father’s appeal against the costs order was allowed. The costs liability was substituted with £50,000.
• High Court, Principal Registry of the Family Division: Her Honour Judge Coates dismissed the father’s residence application and, on 1 November 2006, ordered him to pay the mother’s costs on the indemnity basis, assessed at approximately £119,000.