England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WANDSWORTH COUNTY COURT
(Her Honour Judge Mitchell)

		Royal Courts of Justice Strand London WC2 Friday 14th September, 2001

1. LORD JUSTICE THORPE: In the mid-1990s there were disputes between a Mr and Mrs R in relation to their daughter, L, and as a result of the intensity of the dispute L was made a ward of court. Mr David Burton became involved, and seemingly quite profoundly involved, in this dispute. In the summer of 1998 Mrs R and L, by her next friend, initiated proceedings under the Protection from Harassment Act against Mr Burton.
2. The case came before the court on 30th July, when undertakings were given by Mr Burton and the matter was adjourned over with costs reserved. The adjourned hearing came before Her Honour Judge Mitchell sitting in the Wandsworth County Court on the 10th September 1998. Mr Burton was very anxious that L should herself give evidence. Judge Mitchell who, as a specialist in family justice proceedings, was naturally and rightly protective of the child, expressed considerable distaste at the idea of L being drawn into the dispute between J R and David Burton. Furthermore, she took the line that if L were to give any evidence that should be allowed only by a judge of the Division, since L was within the protection of the Division.
3. Mr Burton's undertakings were renewed - not to harass or attempt to harass, not to communicate or attempt to communicate, not to go within one mile of the home - and the application for L to give evidence was adjourned to the High Court and the application under the statute was adjourned generally. Paragraph 6 then provided that Mr Burton pay the costs reserved and the costs of that day.
4. In the event, the proceedings never did go any further and there has been no other hearing within the harassment proceedings. Mr Burton felt aggrieved by the order that he should pay the costs. He felt that those costs should have been reserved to be decided at any adjourned hearing. Accordingly, he sought permission to appeal.
5. For administration reasons he did not succeed in getting in front of Judge Mitchell until 5th February 2001. On that date she refused him permission to appeal, explaining her reasons fully. Obviously Mr Burton had a right to apply to this court for permission and he did so, but unfortunately he was about four months out of time since his notice of application was not received until 22nd June.
6. Mr Burton has made his application this morning most effectively and most persuasively. He says that the order as to costs condemning him was plainly premature and plainly prejudged all the issues. If the case was being adjourned for a substantive hearing, one of the possible outcomes was that he would demonstrate at the adjourned hearing that the proceedings were without merit and should never have been brought. To condemn him in costs at an early stage when the merits had not been fully investigated was fundamentally unfair and accordingly outside the range of permissible discretionary orders.
7. I do have some sympathy for Mr Burton because I would readily accept that as a matter of general practice where an application of this type is adjourned over for further hearing the conventional order is the order adopted on 30th July, namely costs reserved. But every case has to be given special treatment to meet its special needs or to reflect its special characteristics. There was a history of events which, although not fully investigated, might be said at the least to have brought the proceedings upon the defendant. The episodes involved the delivery of letters by Mr Burton to her father and exchanges of correspondence seeking to ensure that such exchanges were not repeated. So one thing the judge was able to survey was the genesis of the harassment proceedings.
8. Another factor that she may or may not have taken into account was that to make an order as to costs might bear on the future life of the proceedings. She may have considered whether simply reserving the costs was to increase the prospect of another hearing, whereas to make provision for the costs incurred to date might have increased the possibility of their expiry.
9. I have to ask the question whether the order is so exceptional as to fall outside the very broad latitude given to any trial judge in the sphere of costs. I have to ask the question whether it is sensible in a worldly way to grant permission to appeal which will have the consequence of reviving litigation in a sensitive area after a three-year moratorium. I have to further enter into the scale the fact that part of that time delay, namely the four months between February and June 2000, are the responsibility of Mr Burton.
10. Posing the ultimate question against that analysis, I come to the unhesitating conclusion that permission should be refused in this case.
ORDER: Application for permission to appeal refused. (Order not part of approved judgment)