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 BOW COUNTY COURT
(HIS HONOUR JUDGE HORNBY)

		Royal Courts of Justice Strand London, WC2 Monday, 7th October 2002

1. MR JUSTICE BODEY: This is an application for permission to appeal part of an order of His Honour Judge Hornby dated 8th April 2002. The particular part of the order is that the father should pay the costs thrown away by an adjournment on that day of his application for residence and contact in connection with the three children of the family, who are aged 11, 9 and 6.
2. Put briefly, the issue of costs in question arose in this way. Currently the three children live with the mother which, incidentally, is the situation that has been confirmed by an order placed before me today dated 6th June 2002.
3. By a notice of application dated 15 February 2001 the father sought residence, or else defined contact, on grounds into which it is not necessary to go. The applications were listed for directions in front of Judge Hornby on 12th November 2001.
4. On that day, in the light of a CAFCASS report which I understand to have been adverse to the father on the question of residence, it seemed to Judge Hornby that if the father were to abandon his residence application, then the issues of contact between the parents were minimal and should be capable of being dealt with quite easily, that being in the interests of the children and both parents.
5. At that directions hearing, on 12 November 2001, the judge tried hard to resolve those modest issues as to contact (if residence were to stay with the mother) during the course of which he gave some very firm indications, using some strongish language. The high watermark by far of the language which he used was for him to say to the father a propos of the possibility of the case having to go off into the New Year of 2002 (in order to facilitate evidence from the CAFCASS reporter who was long term ill, when it could otherwise have been heard in December 2001):

"Well I ask you, if that is what you think is sensible, then I really wonder whether you've got your brains entirely in your head at the moment."

6. That comment was not, incidentally, quite as recorded by the father's McKenzie friend, Dr. Pelling, in a statement of 5th December 2001, filed before the transcript of the judge's remarks was available, to the effect that "there must be something wrong with his brain" -- that is Judge Hornby speaking of the father.
7. Following that hearing (at which no solution was able to be reached and directions were given) Dr. Pelling filed the statement of 5th December 2001 just mentioned, in which he made a case for Judge Hornby to stand himself down, on the basis that he had gone over the top on 12th November 2001. Dr. Pelling's statement in that respect reads:

"[The judge]took an inquisitorial role and, desperate to avoid a residence trial, he began to bully and insult my client into accepting his view of what contact should be agreed. At the end of one long tirade against my client he said there must be 'something wrong with his brain' [the phrase I have just mentioned] if he could not see what he the judge was saying. This was very intimidating to my client, whom I advised to object to the judge insulting him, but he was by now too intimidated to say anything. In the end Mr R courageously stood his ground and Judge Hornby angrily admitted defeat and ordered that the 13 December 2001 trial date for residence should stand."

8. On 13 December 2001 the father's applications were listed before His Honour Judge Roberts. Unfortunately -- and I take this from page 5 of a later judgment by Judge Hornby -- no arrangements had been made by the father for the CAFCASS reporter to attend. Since the father had said that he wanted her present, the judge adjourned the case to the first open date after 31st January 2002. That turned out to be the hearing on 8th April 2002.
9. At the end of that hearing on 13 December 2001, the following exchange took place between the father and Judge Roberts:

"The Father: sorry, could it be not before Judge Hornby on this date?Could you stick that -- put that in your order please?

Judge Roberts:What do you say about that, Miss Gill?

Miss Gill: I have to say in view of the allegations that are made by Doctor Pelling in his statement about -- --

Judge Roberts: Yes, we're going to a hostage for fortune, isn't it?

Miss Gill:I think it would be better if this doesn't go before His Honour Judge Hornby, because clearly there is almost a ready made excuse there for anyone who wants to take the matter further. So I think it probably would be better.

Judge Roberts:Yes, I don't think I'll make it a specific order but I will have a word with the resident judge of this court and I will explain the position. And so you -- the reason why I'm not specifically making an order for it is that this isn't my regular court and I shan't be here, do you see, Mr R?It's a bit difficult for me to bind other judges of this court, but I will say that I will mention the matter to the resident judge, His Honour Judge Bradbury. And no doubt arrangements can be made."

10. There the matter rested. No one checked what the outcome of the proposed indirect/informal discussions proposed by Judge Roberts was. The case was in fact listed for final hearing of the father's residence application on 8th April 2002 before Judge Hornby.
11. In the meantime the father had made a further statement dated 14 January 2002 regarding residence and contact. In paragraph 19, having made his position very clear that he would not take part in any hearing without the help of his McKenzie friend (to which he was entitled) he said:

"... nor after his insults and prejudicial attitude am I prepared to take part in any trial conducted by His Honour Judge Hornby."

12. On 8th April 2002, with the day set aside for the residence and contact hearing, the father applied at the outset for Judge Hornby to stand down. This was strongly opposed by the mother who, above all, wanted a resolution to the father's applications relating to the children.
13. No transcript of the hearing of 12th November 2001 was available to assist Judge Hornby, which put him in an almost impossible and certainly invidious position. Faced with the subtly misquoted recollection in Dr. Pelling's statement referred to above (I am not suggesting Dr. Pelling misquoted intentionally or deliberately) that he had said of the father "there must be something wrong with his brain," Judge Hornby concluded, with the utmost reluctance, that he would stand himself down. In that respect he said:

"I don't think it is sensible for this case to be adjourned at all. I don't think there is anything in the allegations, but without the transcript to demonstrate that such allegations are nonsense, I don't feel safe to allow this matter to proceed today. I don't think it is in the interests of the children to delay this matter. Having heard Dr Pelling and read the statements, I don't think this application is motivated remotely by the things that Mr R [the father] says. It seems to me he is just trying to harass the mother as much as possible. Unfortunately however, I have to accept it is possible that I may have used quite strong language. It does need to be seen in its context, but if I were to hear the matter today, I can see Dr Pelling and Mr R going straight off to the Court of Appeal and more delay arising and more upset for the mother and the children. I don't think that would be in the interests of this family at all. I want to avoid it. Accordingly, for the reasons which I am bound to say I feel extremely unhappy about (because I don't think the decision I am making is in the best interests of this family) I am going to allow this adjournment which should, in my judgment, have been preceded by formal and proper application being made, but has not been."

14. That left the question of the costs of 8th April 2002 thrown away. In that respect the judge gave a separate judgment in which he made the point (which counsel for the mother must have drawn to his attention) that if there were no order for costs, then there was a risk that the mother would end up having to pay her own costs out of her share of the matrimonial property, pursuant to the statutory charge. In his judgment Judge Hornby said that the mother "will have to pay her own costs" although I think that the existence of a risk would express the situation more accurately (ie a risk that if she recovered or preserved property above the exemption and failed to get costs against the father, then she would end up paying the costs of the adjournment of 8th April 2002).
15. In a judgment running to eight pages, Judge Hornby reviewed the factors and considerations relevant to the costs issue thrown up by the adjournment that he had just reluctantly granted.
16. The high watermark of the case from the father's point of view was the exchange with Judge Roberts on 13th December 2001, which the judge expressly considered and took into account in weighing the fairness of a costs order against the father and about which he said:

"It is clear from that exchange [the exchange with Judge Roberts] that the possibility existed that the [resident] judge might take the view that it should be listed before him and not myself, or alternatively, not take that view. Judge Roberts did not bind himself one way or the other."

17. Judge Hornby then went on to refer to Dr. Pelling having said in his evidence that he had deliberately not advised the father to make any application relating to Judge Hornby hearing the case after 13 December 2001, and said:

"... he [Dr. Pelling ] knew that, of course, there was the possibility that I would not form the view that I should stand down. There was a possibility that I would saying say, 'I'm going to go on'".

18. That ground, namely the discussion on 13 December 2001 with Judge Roberts, was (as I say) the father's best point for not being ordered to pay the costs of the adjournment. In so saying, I have carefully considered all the 12 paragraphs of the Grounds of Appeal and none of the others is as strong since, absent that ground, this would effectively have counted as a late application for a judge to stand himself down, made when, if successful, costs would clearly be thrown away. Criticisms and complaint in statements do not constitute applications.
19. For an aspiring appellant to succeed on an application for permission to appeal, the circumstances have to be such that the appeal would have a real prospect of success or else that here exists some other compelling reason why it should be heard.
20. I am not without some sympathy for the father in the light of the discussions with Judge Roberts on 13th December 2001 but; on the other hand, the discretion as to costs is vested in the trial judge, for the good reason that he sees the case develop and is best placed to have a feel as to the overall merits of where the burden of costs should fall.
21. In this particular case Judge Hornby appears, from the context of his Costs Judgment, to have heard evidence on 8th April 2002 from Dr. Pelling: (I will be corrected by Dr. Pelling who is present today if I am wrong about that). Having read and re-read all the papers in the bundle before me (which do not include any transcript of any oral evidence given) I find it impossible, with the best will in the world to the father, to say that Judge Hornby's costs decision would be likely to be held by the Court of Appeal to be outside the ambit of his discretion.
22. Whatever expectations His Honour Judge Roberts may have given that something would be done to get a different judge other than Judge Hornby, he also made it clear that he could not bind the resident judge at Bow; and so the position remained that the next hearing might be listed before His Honour Judge Hornby.
23. The Court of Appeal would in my view be unlikely to hold that it was outwith Judge Hornby's discretion to conclude that in such circumstances a common-sense responsibility rested on any party who felt strongly against Judge Hornby taking the case, to check the position by one telephone call to the court. That was not the mother's solicitor's responsibility as suggested in one of the Grounds of Appeal, as their support for the father's objection to Judge Hornby hearing the case was just that, namely support so as to avoid the risk of further appeals. Their attitude was not a free standing objection of their own.
24. In all the circumstances, I have not been persuaded that there is a real prospect of success on this application. Regrettably for Mr R the application for permission to appeal must therefore be dismissed.
25. Order: Application dismissed.