England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WANDSWORTH COUNTY COURT
(HIS HONOUR JUDGE WALKER)

		Royal Courts of Justice Strand London WC2
		Wednesday, 10th October 2001

1. LORD JUSTICE THORPE: This is the husband's appeal against a costs order made by Judge Walker at the conclusion of contested proceedings in the Wandsworth County Court as to the residence and contact to two boys, one born in August 1991, and the other in October 1994.
2. Permission to bring this appeal was granted by this court on 3rd July. Mr C, the appellant husband, draws attention to the reasoning for the judge's conclusion that he should pay one quarter of the wife's costs of the proceedings. The judge said only this:

"I am going to comply with two principles. One is that this application, having been entirely unsuccessful, costs would normally follow the event, together with the principle that in Children Act cases it is exceptional to make an order for costs - certainly unusual. I think the best way that I can do justice here is to say that there does seem to me to be a degree of unreasonableness of the approach of Mr C which should make it appropriate for me to go into the sphere of making some order for costs, but that the extent to which I should order him to pay costs is restricted to 25% of the assessed costs of [his former wife]. I do that on the basis that, as I understand it, solicitors and counsel have only come into this matter on these proceedings at a very late stage."

3. Now, it is, I think, important for the determination of this appeal to concentrate on the applications that the judge was deciding and the preparation of those applications through various directions orders. The father had two applications before the court. One was for a residence order, in some guise or another, and the other was for the quantification of contact. The mother had a cross application which was for the release of the children's passports. That is the barest summary, but the reality is that the father's ambition was to achieve a position of shared parenting. He either wanted a joint residence order or he wanted no residence order at all, or he wanted a regime of contact which divided the children's lives equally between their parents.
4. The District Judge laid the framework for trial on 25th September 2000, and it is important to note that both the parties were in person at that stage. The District Judge made an order by consent for the children to share their time more or less equally between the homes, ordered a Court Welfare Officer's report and what I would signify as a pretrial review on 16th January before the Circuit Judge, with the final hearing on 30th January with a time estimate of half a day. He gave liberty to apply for further directions, a liberty which was not exercised.
5. Now, the unusual omission from this order was any timetable for the filing of the written evidence of the parties. It seems that the father prepared a statement of his case, which he completed on 26th October, but which was not filed with the court but simply made available to the Court Welfare Officer. The mother made a statement of 27th November, shortly before her departure for her homeland for an extended visit. In contrast to the father's statement, which has all the appearance of a litigant-in-person document, the mother's statement, at first sight, appears to have been professionally prepared and I cannot help but think that either it was drafted by a solicitor or that the mother had some assistance from a lawyer in the preparation of that statement. But there were no exchanges between the parties, and when the father sought to have sight of the mother's statement from the Court Welfare Officer, she apparently felt inhibited from releasing it without consent.
6. Accordingly, the father's first sight of what the mother was proposing for the future came on 15th January when he received her statement. That, of course, was the day preceding the directions appointment which was conducted by Judge Walker on the following day. The order that he made was simply an order settling an area of dispute as to contact between that date and the final hearing on 30th January.
7. Between the hearing on 16th January and the final hearing on the 30th, we are told the mother instructed solicitors, alternatively, re-instructed the solicitors who had acted for her at earlier stages in what has been a long litigation history. They in turn instructed Mr McCourt, and accordingly, at the hearing on the 30th, the husband continued in person and the wife was before the judge by counsel.
8. Now, not only did the hearing on the 30th exceed the time estimate of half a day, but even a full day proved insufficient, and the judge had to find a second day, which he was able to do very quickly, on 2nd February. Between the two days the husband wrote a letter to the wife's solicitors in which he sought the conclusion of the proceedings by agreement. He proposed a joint residence order, a proposal which he expanded in his numbered paragraphs 1, 2 and 3. He then came to contact, proposing that there should be equal sharing between the parents, and that proposal he expanded in paragraphs 4 and 5.
9. The proposals were quite unacceptable to the mother and her advisers. Her case, as stated in her original witness statement, was clear and detailed: there should be a conventional residence order to her and there should be liberal contact to the father, the details of which were set out in paragraphs 2.7.1 through to 2.7.6 of her statement.
10. At the conclusion of the evidence, the judge gave his ruling over the course of some 16 pages of transcript. He dealt at length with what the children's needs required in the context of his finding that there was a complete breakdown in easy relationship between the parents, a degree of antipathy and animosity that in his judgment ruled out any question of a joint residence order or indeed no residence order at all. He rejected the more sanguine appraisal of the Court Welfare Officer, holding that she had simply failed to pick up the degree of antipathy between the parents.
11. Accordingly, 14 of the 16 pages of judgment are devoted to his explanation of why he felt bound, for the children's sake, to make a clear residence order in favour of one or other of the parties. Whilst recognising that each of them was a perfectly competent parent, he elected to address the residence order to the mother on the basis that that represented an extension of a status quo. The issue of contact he dealt with relatively shortly. Essentially, he accepted the proposals set out in paragraph 2.7 of the mother's statement. His only deviation from that proposal was to enlarge the weekend contact specified in paragraph 2.7.1 from alternate weekends to two weekends out of three.
12. It was in those circumstances that Mr McCourt rose to apply for costs, and the judge's ruling on that application I have already read. Mr C has two perfectly understandable criticisms of the judge's rationalisation. His first criticism is, in my judgment, unanswerable, whatever weight it deserves. The judge simply could not say that the father had been entirely unsuccessful when, by his pursuit of application through to final judgment, he had enlarged the mother's contact proposals to the extent that I have already defined. How substantial an error that is has to be weighed against the overall background and a broad-brush appraisal of the development of the litigation. That really brings me to the second point of criticism.
13. Was it open to the judge to say that there had been a degree of unreasonableness of approach by Mr C? Mr McCourt, in seeking to uphold the judge, tried to introduce a whole chronology of applications, some of which had succeeded, some of which had failed; some of which he could criticise, others which he could not. But that cannot be relevant to an application in respect of costs which had had their origin in the instruction of solicitors more or less on the eve of the hearing. The judge had to concentrate, surely, only on the reasonableness of the husband's approach in the brief period between the instruction of solicitors on 25th January and delivery of judgment on 2nd February.
14. Now, it must be said at once that there is nowhere in the judgment any criticism of the father's conduct during the course of the case, indeed, the judge praised his advocacy as being courteous and effective. But it is necessary to recognise that a judge who has two parents before him over the course of two full days has an insight into motivation and balance that this Court cannot possibly match. Judges are entitled to place very great reliance on the atmosphere that a case engenders and the detachment or lack of detachment shown by the parties in their reaction to proposals which may be proposals set in the written evidence or proposals that develop during the course of the exchanges in court. Where a judge has formed a clear impression of reasonableness or unreasonableness, he or she is clearly entitled to reflect that in any adjudication as to costs.
15. I would hesitate to say that such a finding has to be supported by chapter and verse. Judges have responsibilities that call for sensitivity as well as firmness, and where there is a degree of antipathy and antagonism between parents, it is very important that a judge should not, by insensitive language, in any way exacerbate those feelings, sending one or other parent away from court with a sense of hurt that could have been easily avoided by more restrained language. The fact is that a half-day case was turned into a two-day case. The fact is that the husband's litigation stance was, if not intransigent, certainly inflexible, as is demonstrated by the letter that he wrote between days one and two.
16. Whilst recognising that orders in costs are unusual in private law Children Act proceedings, I would also recognise the important principle that this Court should not interfere with a discretionary conclusion of an experienced Circuit Judge unless very plain error has been demonstrated. I do not myself feel that there has been sufficient demonstration by this appeal. The language is certainly deserving of revision, but this is a brief extempore ruling on an application which was certainly put by Mr McCourt on the basis that the costs burden could be shared more equitably between the parties, in view of the fact that the only party to be billed was his client. The judge did not accept the equal sharing proposed by Mr McCourt and reduced his application to 25 per cent.
17. I have reached the conclusion that it was just within the discretionary ambit. However, I do think that the judge should have been more careful to ensure that any liability fixed on the father was expressly confined to the period commencing 25th January and terminating 2nd February 2001. As I have already indicated, there is at least the hint that the wife received some legal assistance prior thereto, and the order in the court below should, in my opinion, have more specifically safeguarded the father's position by limiting his liability to one quarter of only such costs as could properly be charged and assessed within that limited period.
18. I do not think that it is necessary to go so far as to rewrite the order in the court below. That can be made absolutely plain by this judgment, and on that basis I would not accede to this appeal.
19. LORD JUSTICE RIX: I agree.
Order: Appeal dismissed with costs.