No. FD12P00118
Neutral Citation Number: [2012] EWHC 2199 (Fam)

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

Royal Courts of Justice
Thursday, 28th June 2012

Before:

MR JUSTICE HOLMAN
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B E T W E E N :

	H H	Applicant

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	    B L W	Respondent
	
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MISS J. RAYSON (instructed by Burton Woods) appeared on behalf of the Applicant.

THE RESPONDENT did not attend and was not represented.
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J U D G M E N T
MR JUSTICE HOLMAN:

1.	This is an application for permission to appeal to this court from a decision and order of a district judge in the Principal Registry of the Family Decision as to costs.  

2.	For the purposes of this judgment and my decision today, the facts can be shortly summarised.  

3.	A lady and gentleman (whom I will call the “mother” and “father”) lived together for a number of years.  From their relationship they have one child, a daughter, who was born in June 1996.  Sadly, the relationship between the parents broke down and they separated in 2001.  The daughter then lived primarily with her mother, but had regular contact with her father, including staying contact and trips abroad with him.  As I understand it, neither parent formed significant new relationships and neither has any other children.  

4.	 During 2010 the daughter began to experience a number of emotional and behavioural difficulties, both at home and at school, which it is not necessary to elaborate in this judgment.  She continued to see her father, although the visits became less frequent and of shorter duration.  

5.	The last time the daughter had a period of contact with her father was June 2011 when she was about to be fifteen.  During September 2011, the mother telephoned the father’s mother and told her that the daughter would not be having any further contact with the father or indeed any other members of the paternal family.  That must, of course, have caused the utmost anxiety and despair upon the part of the father.  

6.	The father later, very reasonably, instructed a firm of solicitors, and soon afterwards the mother in turn instructed some solicitors.  There was some inter-solicitor correspondence, which I have seen, beginning in December 2011.  The stance taken and maintained by the solicitor on behalf of the mother was firm from the outset.  She (that is, the solicitor) wrote on 22nd December 2011: 

“I am extremely surprised that you have advised your client that he is entitled to make an application to the court for a contact order.  As [the child] is almost sixteen I do not think a court would want to be seised of this matter, and would take the view that if [the child] wants to see her father it is up to her to contact him...Kindly inform your client that, if [the child] wishes to contact her father in the future, she will make that decision herself.”

7.	In their correspondence, which was much more conciliatory, the solicitor on behalf of the father proposed mediation and clearly sought to avoid the need for an application being made to the court.  By another letter dated 2nd February 2012, the solicitor for the mother wrote:

“Should you insist upon proceeding, we will treat this as ‘litigation conduct’ and we will ask the court to make an order for costs against your client, even though we are in Children Act proceedings.  We take the view that any application to the court for a child of [the child’s] age is not only misplaced, but is a form of harassment as well as an abuse of the court process.”

8.	Pausing there, it is of course the case that the effect of section 9(6) of the Children Act 1989 is that it is only in exceptional cases that a court will make any order as to contact in relation to a child who has reached the age of sixteen.  That, in itself, is a necessarily arbitrary statutory cut off point.  The contact in the present case had ended when the child was just fifteen.  The inter-solicitor correspondence had begun in December 2011 when the child was still some six months before the age of sixteen.  It is, in my view, somewhat exaggerated to characterise the making even of an initial application as to contact in relation to a child then aged about fifteen and a half as either “a form of harassment” or as “an abuse of the court process”.  

9.	A date was fixed by the court of 14th March 2012 for what is known in this kind of private law case as a First Hearing Dispute Resolution Appointment (“FHDRA”).  As that date loomed nearer, there were two further letters in a similar vein to the earlier ones.  The mother’s solicitors wrote on 9th March 2012:  

“We will give you one final chance to withdraw the proceedings, failing which we will be asking the court to dismiss the application with costs.  The costs schedule will be served upon you prior to the hearing.”

On 13th March 2012, the father’s solicitors replied by saying:

“Our client has no intention of asking the court to impose an order against [the child’s] wishes.  His application to the court has been made as a last resort.  He has repeatedly offered to attend a mediation service with your client and it is a matter of great regret that your client has refused all such offers.  In the circumstances, our client has no alternative but to seek the court’s assistance in this matter at the hearing tomorrow.”

10.	So it was that both parents, together with their lawyers and the child, attended at the Principal Registry of the Family Division on the afternoon of 14th March 2012.  As appears to be the practice, appropriately there had been no preparation by that stage of detailed statements by either parent and each simply submitted a short, relatively objective, narrative statements of the history.  As I understand it, a CAFCASS officer met the child in the building and had some discussion with her.  As a result, it was reported to both parents and the district judge that the child was firmly expressing an unwillingness, at that stage, to see her father and in particular that she did not wish to do so in the period leading up to her GCSE examinations.  In a part of the hearing which has since been transcribed the district judge was later to say:

“…the CAFCASS officer has told us that, for whatever reason, [the child] feels that her father can be controlling.  It all amounts to pressure.  …in relation to the issue of contact, [the child] has made her views quite well known, that she wishes to think about whether she wishes to contact her father after her GCSEs.  In relation to indirect contact, [the father’s counsel] asked the CAFCASS officer about whether it was appropriate for the father to write to her and [the officer] said ‘Yes’, and obviously I would ask that that be done after she completes her GCSEs and if she wants to reply then she can do so.” 

So it was that, without resistance by or on behalf of the father who, as I understand it, fully - even if sadly - accepted what was reported by the CAFCASS officer, the district judge ordered that there be no order on the father’s application as to contact.  

11.	At that point, the solicitor on behalf of the mother applied for the mother’s costs to be summarily assessed in the amount of a costs schedule which had previously been supplied.  The solicitor said: “I know it is unusual”, but then pointed to the correspondence in which she had, it is fair to say, made plain from the outset that there would be an application for costs.  

12.	After hearing further submissions on behalf of each parent, the district judge ordered the father to pay the mother’s costs, which were summarily assessed in the amount of the schedule, namely £2,468.  I mention at once that neither at the hearing before the district judge nor at this hearing has there been any issue as to the reasonableness of the costs claimed as to quantum.  But the father strongly challenged and, by his proposed appeal, continues to seek to challenge, the proposition that he should have been ordered to pay any of the mother’s costs at all.   

13.	As is of course very well known, the Family Procedure Rules 2010 disapply that part of the Civil Procedure Rules that provides a starting point that the unsuccessful party pays the costs of the successful party.  As Lord Justice Wilson memorably says in one case, the effect is that in family cases of this kind the court simply starts with a blank sheet of paper.  The district judge was later to say in his judgment: 

“The court has a broad discretion to make such order as it thinks just, and the court has to consider in the circumstances whether it is right to order the father to pay costs, whether by reason of his litigation conduct or simply because it is the right thing to do.  That appears to be the test.”

It does not seem to me that there is any significant error in that broad description by the district judge of the discretion that he was exercising, or as to the approach.  He referred to the fact, as was self-evident, that the father had received legal advice (the content of which was unknown to the district judge, as it remains to me) and that, having decided to make an application for contact, the responsibility for that decision lay upon the father.  That also seems to me to be a perfectly correct and appropriate appraisal by the district judge.  The father is a gentleman of mature years and patent intelligence and full capacity, and he was, and indeed remains, fixed with responsibility for decisions that he took whether acting with the benefit of legal advice or not.

14.	But the district judge then continued with the following passage:

“Am I sympathetic on a human basis to any parent concerned about their child?  Of course the court is, but this is a court and it is costly to bring proceedings.  This is not a meeting house.  Although [counsel for the father] said that he simply wished to come here to establish the child’s wishes and feelings, it is not appropriate to use this court simply to do that through the means of conciliation.  I appreciate the establishment of wishes and feelings of the child is part and parcel of the process, but the father should have stood back and asked himself whether really there was any chance at all - whatever she said to the CAFCASS officer - of the court being willing to make any order at all.  I agree with [the solicitor for the mother] that this was an entirely misconceived application where the result and conclusion was absolutely foregone.   She is nearly sixteen years of age.  It would be highly unusual for the court to make an order and the father should have thought about that…”

That passage has been the subject of considerable criticism by Miss Jane Rayson who appears today, as she did before the district judge, on behalf of the father.  I have to say that, in my view, the criticism is justified.  

15.	The FHDRA was taking place within the context of the Family Proceedings Rules and Practice Direction 12B, “The Revised Private Law Programme”, which is now set out at p.1751 and following of the Family Court Practice 2012.  Paragraph 1.5 of the Revised Programme states in terms: 

“…It also retains the essential feature of the FHDRA as the forum for the parties to be helped to reach agreement as to, and understanding of, the issues that divide them.  It recognises that, having reached agreement, parties may need assistance in putting it into effect in a co-operative way.”

Paragraph 1.7 reads:

“The revised programme is designed to assist parties to reach safe agreements where possible, to provide a forum in which to find the best way to resolve issues in each individual case and to promote outcomes that are sustainable, that are in the best interests of children and that take account of their perspectives.”  

So the express purpose of the FHDRA under the revised private law programme is precisely to provide “a forum” as a means “to reach understanding of issues” and for the resolution of them.  It thus strikes me as curious that the district judge chose to say: 

		“…this is a court…this is not a meeting house.”

It would frankly require a lexicographer to define the practical difference or distinction between “a meeting house” and “a forum”.  Then the district judge said: 

“…it is not appropriate to use this court simply to [establish the child’s wishes and feelings] through the means of conciliation.”

I find that also difficult to understand.  

16.	So far as I am aware, there is no mechanism as yet whereby a parent in the position of this father can engage the services of CAFCASS so as to ascertain and report as to the wishes and feelings of his child, save by first taking the step of issuing an application, within which the first significant procedural step is the FHDRA.  As I understand it, a significant purpose of a FHDRA is to get the parties together in the “forum” or, frankly, “meeting house” together with the child, if of sufficient age, and provide to them the services, both of an experienced CAFCASS officer and of a judge, so as to help the parties and the child forward in the ways described in paragraphs 1.5 and 1.7 of the revised private law programme.  

17.	What else could this father have done?  He was being denied any contact with his child, so he had no direct line of communication with her.  He was merely being told, first, by the mother’s telephone call to his mother and later, by the stark, short letters from the mother’s solicitors, that his child would not see him.  It seems to me to have been eminently reasonable and eminently appropriate that before he simply just accepted that and, as the judge put it, “stood back”, he promoted - by the only means available to him - that some experienced objective third party (namely, the CAFCASS officer) saw and spoke to his child and then reported.  The district judge said 

“…. the father should have stood back and asked himself whether really there was any chance at all…of the court being willing to make any order at all”.   “whatever she said to the CAFCASS officer.”  

I, for my part, would have thought that what she was to say to the CAFCASS officer was likely to be fundamental in this situation.  

18.	It is true, as the district judge was to say, that she was nearly sixteen years of age, but the fact is that at the outset of the proceedings she was still six months short of that age.  Courts frequently utilise the opportunity in the remaining period before some chronological cut off point to make age appropriate orders.  In this very case, for instance, although she was approaching sixteen, it may have been possible and would have been very important to explore whether somehow contact could be re-established in the months leading up to that age.  

19.	I, for my part, therefore (albeit that I have only heard argument on one side) do not share the comment of the district judge that it “was an entirely misconceived application” or that “the result and conclusion was absolutely foregone”.  On the contrary, it seems to me that this was a perfectly reasonable and justifiable application for this father to have made.  It would, of course, rapidly have become  very unreasonable, and indeed misconceived, to proceed with it a moment beyond the course and content of that FHDRA on 14th March 2012.  If, having heard the report from the CAFCASS officer, the father had nevertheless persisted with his application then he would soon have been acting with folly, but he did not do so.  

20.	As soon as the district judge had made his judgment and ruling as to costs, Miss Rayson asked for permission to appeal but that was refused by the district judge.  Therefore, an application for permission was made within time to this court and it is that application which comes before me today.  

21.	Since this case is governed by the Family Procedure Rules 2010, the relevant rule is rule 30.3 of those rules, although the material rule (namely 30.3(7)) is in identical terms to rule 52.3(6) of the Civil Procedure Rules.  Each of those rules provides that: 

“Permission to appeal may be given only where -

(a)	the court considers that the appeal would have a real prospect of success; or
(b)	there is some other compelling reason why the appeal should be heard.”

It is not suggested in this case that there is some other compelling reason why the appeal should be heard, but Miss Rayson strongly submits that the proposed appeal “would have a real prospect of success”.  With that, I agree.  That is far from saying that, in my view, the proposed appeal would definitely succeed.  

22.	On a substantive appeal as to costs, it would be necessary to show that the judge below had either made some significant error of law, which this judge did not do, or had reached a decision which was plainly wrong and such that no district judge correctly directing himself could properly have made.  As is quoted in a passage in the White Book, Volume 1 at para.52.1.5:

“The general approach of appeal courts is one of reluctance to interfere with costs orders…As is well known, orders for costs are very rarely disturbed [per Judge LJ in a case which is then cited].”

So the hurdle on any appeal from a discretionary decision as to costs is undoubtedly a very high one.  Although I myself have identified above a number of criticisms of the approach by, and language used by, the district judge, that is far from saying that the proposed appeal would inevitably succeed, although I do frankly say that I cannot conceive that I myself would have made any order as to costs if I had been hearing this matter on 14th March 2012.  

23.	But the test under rule 30.3(7)(a) is of course a much lower one, namely whether the appeal “would have a real prospect of success” and I am in no doubt that it would.  That, however, is not the end of the matter.  

24.	The overall decision, whether or not to grant permission to appeal, remains discretionary.  In deciding whether or not and how to exercise that discretion, the court must, amongst other matters, apply the relevant overriding objective.  The overriding objective as elaborated in rule 1.1 of the Family Procedure Rules 2010 is not, in all respects, the same as in rule 1.1 of the Civil Procedure Rules 1998.  First, there is a reference in para.1.1(1) of the Family Procedure Rules to “any welfare issues involved”.  However, within the four corners of this proposed appeal there are simply no welfare issues involved.  It is simply about costs and a sum of money quantified at £2,468.  It is right also to say that there are certain references within the overriding objective in rule 1.1 of the Civil Procedure Rules to the financial position of each party, which are not directly repeated or reflected in the Family Procedure Rules.   But the elaboration of the overriding objective in each of the rules is an inclusive and not an exhaustive one.  In a case which is purely concerned with a small sum of money, it seems to me to be no less appropriate to have some regard to the financial position of each party, whether the overriding objective under consideration is that in the Family Procedure Rules or that in the Civil Procedure Rules.  Under both elaborations of the overriding objective, the court has to consider allotting to the case “an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.”  

25.	This proposed appeal concerns no more and no less than the sum of £2,468.  We know from the costs schedules that were prepared for the hearing on 14th March 2012 that the costs of the father’s representation on that day itself were in aggregate £1,450 plus VAT.  The solicitor on behalf of the mother appeared without counsel and her costs of attending that day were £825 plus VAT.  Informed by those figures and bearing in mind that it would not be unreasonable of the mother to instruct counsel if there were to be a substantive appeal, it seemed probable that the costs on each side of a proposed appeal could not be less than at least £2,000 inclusive of VAT, or aggregate costs of a minimum of £4,000 and probably somewhat more.  When I put those figures to Miss Rayson, however, she told me (what does not appear from any of the documents in the case) that she and her solicitor were so moved by their sense of injustice at the costs order in this case that they had already reached an irrevocable agreement with their client that they would act entirely free of charge throughout the proposed appeal proceedings.  In short, his sole costs of the proposed appeal were and will remain limited to the court issue fee of £115 and the fee for obtaining a transcript of part of the hearing below of £76, making a total of £191.  So Miss Rayson was able to say to me that, on his side, the total costs hazarded, as it were, by the father on his proposed appeal are in fact £191, which she submits is a proportionate amount to spend when appealing an allegedly unfair and unjust order for the payment of £2,468.  If it stopped there, I would agree.  

26.	I, however, have to take into consideration also the costs that would be liable inevitably to be incurred by and on behalf of the mother, unless of course she were to throw her hand in and abandon the benefit of the costs order already obtained.  Just because the lawyers for the father have decided, most generously, to act free of charge is not, of course, any reason why the lawyers for the mother should do so. As I have said, it seems reasonable to assume that her minimum costs would be of the order of £2,000, so, even if one treats the costs on the father’s side as limited to £191, the proposed appeal would still involve hazarding at least £2,000 in relation to an issue of £2,468.  

27.	Further, I do have to take into account appropriate allocation of the desperately hard pressed resources of the Family Division of the High Court.  In a very different context, in the case of Dow Jones & Co. Inc. v. Jameel [2005] EWCA Civ. 75, Lord Phillips, Master of the Rolls, giving the judgment of the court said at para.54: 

“It is no longer the role of the court simply to provide a level playing field and to referee whatever game the parties choose to play upon it.  The court is concerned to ensure that judicial and court resources are appropriately and proportionately used in accordance with the requirements of justice.”

Later in the same judgment at para.69, the Court of Appeal was to say, metaphorically: 

“The cost of the exercise will have been out of all proportion to what has been achieved.  The game will not merely not have been worth the candle, it will not have been worth the wick.”

It might seem harsh to the father, who sits here today, to hear metaphors of a “game” and a candle and its wick, but that was the language used by a Court of Appeal of great distinction in that judgment.  

28.	At page 2043 of the 2012 Family Court Practice, in the notes to Family Procedure Rules, rule 30.11, the editors write:

“Proportionality - In exceptional but appropriate cases the appeal court may decline to hear an appeal on the basis that further litigation is disproportionate to the costs and/or issues in the case (Cook v. Plummer…).”

Miss Rayson has kindly produced the full report of Cook v. Plummer [2008] EWCA Civ. 484; [2008] 2 FLR 989.  I mention that there is no reference in the judgment of Lord Justice Thorpe in that case to any test of exceptionality, but in a very different factual context he was to ask at para.13 (at the end of his judgment) a question: 

“Is it proportionate that this court should permit her to do so?  I have reached the firm conclusion that it is not.”

This clearly indicates that, even in family litigation, appellate courts have to take into account broad overall considerations of proportionality.  

29.	As I have already said, it does seem to me that a relevant matter, even in family proceedings, is the financial position of each party.  No family judge can fail to be aware that there are many, many people to whom even apparently very small sums of money matter acutely.  There are, of course, many people whose means are so limited that they might feel driven to appeal in relation to very small sums that to them are simply unpayable.  

30.	I enquired in general terms about the financial circumstances of these parties.  The father works in the software industry.  He earns £150,000 gross per annum and net about £84,000 per annum.  He is, as I have said, a single man.  This child is his only child.  He is saving to buy a house of his own and currently has savings of about £350,000.    

31.	On the mother’s side, he understands that the mother owns her own home.  She also is in employment as some form of project co-ordinator.  He does not know her actual income.  So far as he is aware, she is not in any other relationship.  He pays her voluntary agreed maintenance of £900 per month for the support of their daughter.  

32.	Against those figures, one has to say, however brutally, that the sum of £2,468 is a very small one.  This is not a man who can say, or who does say, that an order has been made which he simply cannot pay.  In my view, there simply is no proportionality between either the costs of the proposed appeal (even with the father’s lawyers generously acting for free) or the amount of court time that would be absorbed (say, half a day) and the sum at issue.  

33.	When I put those points to Miss Rayson during the course of argument she, with her customary eloquence matched also by economy, stressed that from the perspective of her client (tinged, I felt, also by the sense of injustice of herself and her instructing solicitor) this proposed appeal is not exclusively, or even perhaps primarily, about the money involved.    Rather, it is because the father retains a strong sense of grievance that he was unfairly criticised by the district judge, particularly in the passage from his judgment that I have already quoted.  Further, I sense that his legal advisors feel that in some way the criticism spilled over to them because of two references by the district judge to the father being “privately advised”.  

34.	If some issue of real seriousness arose so as to amount to “some other compelling reason why the appeal should be heard” then different considerations might apply.  The judgment of the district judge was not a public judgment.  It was a short ex tempore judgment given by a hard pressed district judge at the end, I was told, of a long day and many previous cases.  

35.	The real tragedy of this case, from the perspective of the father, was and remains the unwillingness of his daughter at the moment to see him.  Insofar as there appears to be some criticism of him within the quoted passage of the judgment, it seems to me that he ought now to move on.  In any event, whatever may have been said by the district judge that day he has now had considerable ventilation of it at this permission hearing this afternoon.  He has now heard my own judgment (being a more senior judge) and heard myself expressing that, in my view, the district judge did use inappropriate language and did appear unfairly to criticise the father.  

36.	My overall position is that the proposed appeal, although having a real prospect of success, is one that lacks any proportionality to the amount at stake.  For that reason and that reason alone, I refuse this application for permission to appeal.