MB v KB & Ors (Costs)

In summary-return proceedings under the inherent jurisdiction, the appropriate starting point is generally no order as to costs. An adverse order may nevertheless be made where a party has behaved reprehensibly or adopted an unreasonable stance, having regard to all the circumstances. Success alone does not justify an order. Necessary expert evidence concerning foreign law may properly be shared between the parties, even where the evidence ultimately proves unsatisfactory. Necessary translations may likewise be shared. A party who unsuccessfully seeks disclosure will not ordinarily bear the other party’s costs without unreasonable or reprehensible conduct.

The father applied for the summary return of two children to Qatar after their mother brought them to England. The application was dismissed in an earlier judgment: MB v KB (Return under Inherent Jurisdiction: Qatar) [2023] EWHC 3177 (Fam). The court then determined four costs issues: the costs of the proceedings generally, expert evidence on Qatar law, translations of documents from Qatari proceedings, and an unsuccessful disclosure application against the Home Office.

1. The court retained a wide discretion over costs. CPR r.44.2(2), including its general rule that the unsuccessful party pays the successful party’s costs, was disapplied by FPR r.28.2(1). The starting point was therefore no order as to costs, applying the principles identified in SB v MB (Costs in Hague Convention proceedings) [2014] EWHC 3721 (Fam).
2. The same approach applied to summary-return proceedings under the inherent jurisdiction as to proceedings under the 1980 Hague Convention. The court had to consider whether the father’s conduct was reprehensible or his stance unreasonable. His decision to bring proceedings after the children’s removal without his consent was not unreasonable. Nor was it unreasonable to test the Guardian’s evidence or argue for the weight to be given to other welfare factors. There was accordingly no order for the general costs.
3. Expert evidence on Qatar law was necessary to assess whether welfare issues were capable of being tried in Qatar. The necessity of the evidence was unaffected by the mother’s nationality, her wish not to return, or the children’s wishes. Although the expert evidence was unsatisfactory, that was not attributable to any party. The expert costs were therefore to be shared equally.
4. The certified translation of the Qatari judgment was necessary, and the other translated documents had been treated by the parties as relevant. Given the modest total cost, the translation costs were also to be shared equally.
5. The Home Office disclosure application had been refused as unnecessary and disproportionate. It was not, however, reprehensible or unreasonable. CPR r.44.10(1) also supported no order where an order makes no provision for costs. The court made no order for costs on that application. The final order was equal sharing of the expert and translation costs, a legal aid assessment of the Guardian’s costs, and otherwise no order as to costs.