DCB v. AB

HCMP 2173/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 2173 OF 2014

_______________________

______________________

________________

D E C I S I O N
(On Costs)

  ________________

Introduction

1.  This court handed down a judgment in these wardship proceedings on 16 May 2017, in relation to the ward L’s care and control, relocation and whether L should be dewarded (“Judgment”).

2.  Save otherwise indicated, in this decision, I shall follow the same abbreviations in the Judgment.

3.  The order made by this court was to the following effect:

(i) The 19.05.15 Custody Order be varied to the extent that the Mother be granted L’s sole care and control with defined access set out in the order;

(ii) The Mother’s application for permanent removal of L to Singapore be dismissed;

(iii) The two week arrangement do continue until the Mother returns to Hong Kong;

(iv) L shall remain a ward of this court until further order.

(“16.05.17 Order”)

4.  The court further made directions in the 16.05.17 Order in relation to the lodging of submissions on costs, which is to be dealt with on paper.

5.  The Mother continues to be under legal aid and her Counsel Mr Egerton has lodged submissions on her behalf.  The Father was acting in person at the trial, and is now legally represented.  His Counsel Mr Ken Cheng has lodged submissions on his behalf.

6.  As a start, the directions this court made in the 16.05.17 Order were only in relation to the costs of the trial which led to the Judgment.  It is not clear why written submissions on costs were made in relation to the Interim Maintenance application.  The matter of costs in relation to that application was reserved in the Interim Maintenance Order, and there had been no directions made in relation to that matter, and indeed the parties’ updated Form Es were only exchanged on 26 June 2017, well after the 16.05.17 Order.  Further, I am of the view that there should be also an agreed bundle of correspondence separately lodged, containing correspondence, if any, over any proposals and counter proposals over interim maintenance.  I accept Mr Cheng’s submission that those costs reserved should be dealt with separately.

7.  In this decision, I will only consider the costs of the trial which led to the Judgment and the 16.05.17 Order.  I will make directions as to those reserved costs in the Interim Maintenance Order at the forthcoming direction hearing on 14 August 2017 in relation to L’s financial provision.

General Principles

8.  Generally speaking, costs are in the unfettered discretion of the court.  As seen in Order 62 of the Rules of the High Court, costs normally follow the event.  Order 62 rule 5 (1) now also sets out special matters which the court shall take into account to such extent, if any, as may be appropriate in the circumstances.  Such special matters include the conduct of all the parties, and whether a party has succeeded on part of his case, even if he has not been wholly successful.

9.  In relation to “conduct of the parties”, Order 62 rule 5(2) further sets out such conduct :-

“(a) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;

  (b) the manner in which a party has pursued or defended his case or a particular allegation or issue;

  (c) whether a claimant who has succeeded in his claim, in whole or in part, exaggerated his claim; and

  (d) conduct before, as well as during, the proceedings.”

10.  It has however been long been recognized, and also set out by our Court of Appeal in TPL and WYY,CACV 47/2014 and CACV 61/2014, Judgment 15.12.14[1], the general practice in applications to do with children, the usual order should be no order as to costs.  However, as pointed out by Yuen JA, the general practice is not a rigid rule and accordingly, the courts have said that this approach to costs does not apply in exceptional circumstances, such as where the conduct of one party has been reprehensible or the party’s stance has been beyond the band of what is reasonable[2].

11.  In Re LB (Wardship : Costs), HCMP 813 of 2011, judgment dated 21 October 2011, Jeremy Poon J, as he then was, held that exceptionally, the court would depart from the general practice and make a costs order, having regard to relevant circumstances including whether[3]:

(a) a party had a proper interest in participating in the proceedings;

(b) a party had acted bona fide in the best interests of the child;

(c) a party had any ulterior motive for participating in the proceedings;

(d) it was necessary to invoke the court’s wardship proceedings;

(e) a party had been guilty of unreasonable conduct in relation to the conduct of the proceedings[4].

12.  As said by Yuen JA in TPL, in considering whether the exception applies in a particular case, the court should not be too quick to label a parent’s conduct as “unreasonable”, as seen in the passage quoted from R v R (Costs: Child Case) [1997] 2 FLR 95, and one must not confuse unreasonableness in relation to the child-because one might say that we are expected to be unreasonable in our attitudes to our children-and unreasonableness in the attitude to the litigation[5].

13.  As submitted by Mr Egerton, there is a distinction between a party “behaving unreasonably”, which would warrant a costs order; and a party “running a hopeless case”, which would not warrant a costs order[6].

14.  In Re T (care proceedings: serious allegations not proved) [2012] UKSC 36, the UK Supreme Court summarised the judgment of Re J (Costs of Fact-Finding Hearing) [2010] 1 FLR 1893, and supports that when the issue has been one of pure fact-finding, and the question of costs is ring-fenced and that accordingly the case for a costs order is strong[7].

15.  In Re J, most of the mother’s allegations were held to be established and Wilson LJ in the Court of Appeal ordered the father to pay two thirds of the mother’s costs of the hearing, representing the costs incurred by the mother which is wholly referable to her allegations against the father[8].

16.  With the above principles and practice in mind, I turn to the present case.

The Mother’s ground for seeking costs against the Father

17.  The Mother seeks an order that the Father pays half of the costs of her application for care and control and relocation.

18.  Mr Cheng however submitted on behalf of the Father that there should be no order as to costs.

19.  The Mother’s main ground for seeking costs against the Father was that his litigation conduct was unreasonable.  In particular, Mr Egerton pointed out that the Father’s litigation conduct was unreasonable because:

(i) He reported the Mother to the Legal Aid Department no doubt with intent to deprive her of legal representation;

(ii) He made serious and unsubstantiated complaints of ‘bias’ against Miss Tsang, the Court appointed Social Welfare Officer which not only were unwarranted but also significantly prolonged the trial thereby increasing the Mother’s legal costs and unnecessarily utilised the Court’s resources;

(iii) He made unsubstantiated allegations against the Mother which required detailed responses in the Mother’s written evidence, thereby increasing her costs, but yet did not cross examine her:

(a) Contempt of court

(b) Conviction of child abduction

(c) Non factual statement

(d) Erroneous statements

(e) Perjured testimony

(f) Deceit

(g) Accusation of mental problems and attempted suicide

(h) Parental alienation and denying access

(i) Fraud

(j) Misrepresentation of facts and abuse of the legal system

Discussion

20.  First of all, I have to point out that the Father was the one who was granted sole care and control after the Mother’s non compliance of the Interim Access Order and failure to participate in the Hong Kong Proceedings.  The Mother was applying for a variation of the provisions in the 19.05.15 Custody Order.  It was thus not unreasonable for the Father to seek to maintain the then order in his favour. He did not have a hopeless case.

21.  As pointed out by Mr Egerton, it is not the Mother’s case that the Father’s stance was reprehensible or unreasonable.  The Mother’s complaint is only in relation to the Father’s litigation conduct being unreasonable.

22.  The Father had complained to the Director of Legal Aid over the Mother being granted legal aid, and I understand his complaints were in relation to whether the Mother had made an accurate declaration of her means.  Obviously, had the Director come to such a view, the Mother’s application would be revoked. As it turned out, it would appear that the Director did not find his complaints justified, and although the Mother’s legal aid was discharged, shortly thereafter, it was restored.  The short-lived discharge was after the trial and did not really have a significant impact on the progress of these proceedings.

23.  The findings of this court indicated that the Father’s complaints of social welfare officer Miss Tsang being biased and that her investigation was flawed were unsubstantiated.  However, the perception of a parent that a social welfare officer, whose recommendation is not in his/her favour, is biased or has not taken into account certain matters, is not uncommon.  I am unable to say the Father’s conduct was reprehensible or unreasonable by reason of his complaints or cross examination of Miss Tsang.

24.  Mr Egerton complained that the Father’s cross examination of Miss Tsang prolonged the trial.  The Father was unrepresented.  I accept that that there were repetitive questions by the Father, but there were few objections to those questions.

25.  As pointed out by Mr Cheng, the Mother did not succeed in her relocation application, and she had called her parents mainly to support her removal application.  Much can be said at least for this application, there should be no order as to costs.

26.  I have found in the Judgment that the Father’s choice of language in his affirmations was “inflammatory, emotive and quite unnecessary”.  Some of his allegations were very serious, and Mr Egerton submitted that this had led to the Mother having to file lengthy affirmations in reply.  The Mother had filed a total of 5 affirmations, but some of the evidence was in support of her own applications.  Although additional costs were incurred in the preparation of some of her affirmations, in the end, the Father did not cross examine her, and her evidence was not put under scrutiny. This no doubt was a relief for the Mother, and in any event much court time and also costs were saved.

27.  The parties did attempt mediation but there was no evidence that the mediation attempts were not successful by reason of the Father’s attitude.

28.  As I have said, the Father did not have a hopeless case, and it was necessary at the time for him to invoke the court’s wardship proceedings in order to try to bring L back to Hong Kong.  He had no ulterior motive and although the language he used in his affirmations and his criticisms of the Mother indicated he is an emotive person, it could not be said that he had conducted the litigation in relation to L’s care and control in a way other than bona fide in the best interests of L.

29.  Having considered all the circumstances of this case, I am unable to say the Father’s litigation conduct in relation to L’s care and control was reprehensible, or beyond the band of what was reasonable.  Bearing in mind L is still young, and the parties will need to continue to communicate over her welfare for years to come, I have come to the view that it is in L’s best interest that there should be no order as to costs, including any reserved costs, save those already ordered, if any.  The Mother’s own costs are to be taxed in accordance with legal aid regulations.