H v Dent & Ors

Costs orders in children proceedings are rare, but may be made in separate committal proceedings that constitute satellite litigation. A litigant in person is not immune from costs where the application is fundamentally defective, abusive or has no real prospect of success.

Indemnity costs may be justified where the conduct or circumstances take the case outside the norm, particularly where a hopeless claim is pursued despite clear warnings and a sensible offer to withdraw.

H brought committal applications against three defendants arising from complaints about the handling of child-contact arrangements. The applications were separate from the underlying proceedings under the Children Act 1989. An earlier judgment found them procedurally defective, unsupported by sufficient evidence and abusive.

The present judgment concerned costs. The first and second defendants did not seek costs. The third defendant, the mother’s solicitor, sought her personal legal costs on the indemnity basis. The issues were whether H should pay those costs, the appropriate basis of assessment and whether payment on account should be ordered.

1. The committal applications were discrete satellite litigation. Although costs orders in proceedings relating to children are rare, the defendants were not parties to the underlying proceedings and the relevant costs rules applied through FPR 2010, r 28.2 and Part 44 of the Civil Procedure Rules 1998.
2. The court considered the parties’ conduct, the absence of success on any part of H’s case, the reasonableness of pursuing the allegations and the manner in which the applications were brought. The applications were fundamentally flawed, had no real prospect of success and constituted an abuse of process.
3. The court applied the approach in R v R (Costs: Child Case) [1997] 2 FLR 95, approved in Re T (Costs: Care Proceedings: Serious Allegations Not Proved) [2013] 1 FLR 133. It also applied the guidance in Sectorguard plc v Dienne Plc [2009] EWHC 2693 (Ch), that disproportionate or pointless committal proceedings may be abusive and attract costs consequences.
4. The third defendant had been sued personally, incurred significant costs and successfully defended serious allegations unsupported by substantial or credible evidence. H’s status as a litigant in person did not prevent a costs order.
5. Indemnity costs were justified because the proceedings were wholly misconceived and H continued after a clear warning and a generous offer to withdraw. H was ordered to pay the third defendant’s costs on the indemnity basis, subject to assessment if not agreed. No payment on account was ordered at that stage under CPR r 44.3(8).