RB (Adult) (No 3) , Re

In family proceedings concerning a vulnerable adult, costs do not ordinarily follow the event. The court must exercise its discretion by considering the nature of the jurisdiction, the outcome on particular issues and the parties’ conduct. An adverse costs order may be appropriate where a party has pursued peripheral issues unreasonably and in a manner substantially increasing the costs. The court may make an issues-based or percentage order where issue-by-issue assessment would be impracticable. A litigant should not be ordered to pay costs relating to issues on which such an order would be unjust, particularly a central welfare issue or an issue that made only a modest contribution to the costs.

The judgment concerned applications arising after earlier final judgments in proceedings about RB’s welfare. MF sought compensation and costs from the local authority. The Official Solicitor sought costs from MF and, conditionally, from the local authority. MF also attempted to reopen the earlier findings, seek a retrial and obtain permission to appeal, but those applications had been dismissed and the earlier judgments were final and binding.

The remaining issues were whether MF had any legal or factual basis for compensation, and how the costs of the proceedings should be allocated, having regard to the outcome and the parties’ conduct.

1. Compensation. MF’s application for compensation was dismissed. He had not identified a legal basis for the claim, and in any event there was no factual foundation for it. His application for further time to formulate the claim was refused because he had already received ample extensions and the other parties were entitled to finality.
2. Finality. The earlier judgments, including the judgment of 30 September 2010 and the judgment of 28 January 2011 refusing permission to appeal and a retrial, were final and binding. MF could not use the costs or compensation applications to re-litigate issues already determined.
3. Costs principles. Applying the approach recognised in Re HM (Vulnerable Adult: Abduction) (No 3) [2010] EWHC 2107 (Fam), [2011] 1 FLR 1394, the outcome and conduct were relevant to the discretion under Civil Procedure Rules 1998, rule 44.3, including the matters identified in rule 44.3(5).
4. There should be no order for the costs of the central welfare issue. MF had lost on that issue, but his case had some expert support, the issue had not previously been finally determined, and any misconduct could be addressed through an issues-based order.
5. There should also be no order for the costs of the sexual abuse and apology issue. The issue primarily concerned MF and the local authority, and its additional effect on the Official Solicitor’s costs was comparatively modest and difficult to assess.
6. MF’s pursuit of the remaining peripheral issues, and the unreasonable and sometimes extravagant manner in which he pursued them, justified an adverse costs order. A detailed issue-by-issue assessment would be disproportionate. The court therefore ordered MF to pay 20% of the Official Solicitor’s costs from 4 August 2005 to 30 September 2010, subject to detailed assessment if not agreed. There was no order for costs incurred after 30 September 2010. The applications against the local authority were dismissed.

The judgment was a first-instance decision of the High Court (Family Division). It records earlier judgments in the same proceedings, including [2010] EWHC 2423 (Fam) and [2011] EWHC 112 (Fam), but no appeal from those decisions was pursued.