Timokhina v Timokhin (Rev 1)

In family proceedings, an order which is silent as to costs does not remove the court’s jurisdiction to make a later costs order. The rule that no party is generally entitled to costs remains subject to the residual discretion conferred by the Family Procedure Rules 2010.

On an indemnity assessment, proportionality is not the test. Costs must nevertheless have been reasonably incurred and be reasonable in amount. Indemnity costs do not justify excessive advocacy costs for a hearing whose remaining issues are narrow.

The mother appealed against an order of the Central Family Court requiring her to pay £109,394 towards the father’s costs, assessed on the indemnity basis. The costs arose from an unsuccessful application to stay an order permitting the children’s relocation to Russia and from a subsequently withdrawn appeal.

The order refusing the stay had been silent as to costs. At the later hearing, the judge retrospectively awarded the father the costs of that hearing, ordered indemnity assessment and summarily assessed the total costs.

The issues were whether the judge had jurisdiction to award costs for the earlier hearing, whether indemnity assessment and summary assessment were permissible, and whether the amount awarded was unreasonable.

1. The appeal was allowed in part on quantum. The costs award was reduced from £109,394 to £78,144. The remaining grounds of appeal were dismissed.

2. The court had jurisdiction under Rule 28.1 of the Family Procedure Rules 2010 to make a later costs order where the earlier order had not mentioned costs. Rule 28.1 is the overarching provision and permits the court to make such order as to costs as it thinks just at any time. Rule 44.10(1)(a)(i) of the Civil Procedure Rules 1998 states a general rule, rather than an absolute prohibition. It leaves a residual discretion to award costs in an appropriate case. The exceptions in Rule 44.10(2) are not exhaustive. The jurisdiction did not depend upon either the slip rule or the jurisdiction to vary or revoke an order considered in Tibbles. The continuity between the stay application and the adjourned permission application made the costs order a proper exercise of discretion.

3. The judge was entitled to order indemnity costs. The proposed appeal was hopeless in view of the evidence concerning the children’s welfare, the findings already made and the mother’s conviction. The asserted procedural arguments did not place the decision outside the judge’s discretion.

4. The judge was also entitled to conduct a summary assessment. The hearing had been brief, the parties made detailed submissions, and the court had sufficient material to perform the assessment. The general practice is to assess costs summarily at the conclusion of a hearing lasting no more than one day unless there is good reason not to do so.

5. Indemnity assessment removes the requirement of proportionality, but costs must still be reasonably incurred and reasonable in amount. By the later hearing, the appeal had been withdrawn and the principle that the mother would pay costs had been conceded. Attendance by leading counsel at a fee of £25,000 was therefore unreasonably incurred. Junior counsel’s fee of £12,500 was reasonably incurred but unreasonable in amount. The award was reduced by the whole of leading counsel’s fee and half of junior counsel’s fee.

1. Court of Appeal (Civil Division): By [2019] EWCA Civ 1284, unanimously allowed the mother’s appeal in part on quantum, dismissed the other grounds and substituted a costs award of £78,144.
2. Central Family Court: His Honour Judge Meston QC ordered the mother to pay £109,394 for the father’s costs, summarily assessed on the indemnity basis, including costs arising from the earlier stay hearing.
3. Central Family Court: District Judge Gibson refused the mother’s application to adjourn the children proceedings, permitted their permanent relocation to Russia and subsequently refused a stay. The order refusing the stay did not mention costs.