PJM v. GPN

FCMC 4999 / 2014

[2018] HKFC 167

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 4999 OF 2014

----------------------------

----------------------------

---------------------------------

RULING
(Costs in children’s trial)

---------------------------------

Introduction

1.  This application arises out of my judgment on the arrangements for the children of the family dated the 2 May 2018. In my Conclusions and order I said as follows:

44. Consequently I shall make an order as follows:

i) The Petitioner father’s summons dated the 3 November 2016 and the Respondent mother’s summons dated the 17 November 2017 shall both be dismissed. Order 1 contained in the court order dated the 4 December 2014 shall be varied to the extent that there shall be an order for shared care with the children splitting their time between the two households on week on/week off basis during term time as they do at present. There shall be no alteration to the arrangements for the school holidays and single public holidays.

It is further directed that:

ii) Both parties shall appoint a parental co ordinator. The parties may consider approaching the Beam of Hope Project in that respect.

iii) Both parties shall take all written medical reports to all medical and therapeutic consultations.

iv) Both parties shall only refer to T having a condition that he has actually been diagnosed with, currently Attention Deficit/ Hyperactivity Disorder combined presentation, Severe and Social (Pragmatic) Communication Disorder.

v) Neither party shall engage medical professionals for the children including those providing therapeutic support for them, without informing the otherside and seeking their consent.

Costs

45. Although this is a very high conflict case there is nothing here which takes it out of the realms of the ordinary in so far as costs are concerned. The mother has indicated that she wishes to seek her costs. However, in the first instance I will make an order nisi to be made absolute in 14 days’ time that there be no order as to costs. If either party wishes to challenge this, then they will need to take out the appropriate application. There shall be certificate for counsel and I thank him for his assistance in this matter.

Thus it is further ordered that   

vi) There shall be an order nisi to be made absolute in 14 days’ time that there be no order as to costs. There shall be certificate for counsel.  

The Respondent mother now seeks to challenge that costs order.

2.  By the time of the trial the parties had been locked in ongoing litigation and related disputes with respect to their two children for a considerable period of time. Communication between them was very difficult and there was very little if any mutual respect or trust. Thus although some of the outstanding issues at trial were relatively minor the parties were nevertheless unable to reach consensus.

3.  In general terms it could be said that I came down mainly in favour of the mother in that I agreed with her that the current shared care arrangement should continue. However, I accept that I did make further directions with respect to some of the other ongoing issues between the parties, as requested by the father. Some of those issues were compromised. On others I came down in favour of the father. For example, I specifically directed that both parties only refer to T having a condition that he has actually been diagnosed with – see the highlighted paragraph 1 (44) (iv) above. 

4.  Given that this was a children’s matter I decided at the end of the day to initially make the standard order in relation to costs. The mother seeks to vary that costs order and asks either that the father be ordered to pay her costs or that alternatively he contribute towards them and that the costs be taxed or summarily assessed with certificate for counsel. According to the documents produced the mother’s final discounted legal bill came to just over HK$300,000. 

The law

5.  The law on costs is not in dispute. It is accepted than in the normal course of events the court will make no order as to costs when the matter in issue relates to children. A costs order against one parent in a child related matter is considered unusual unless that parent has for example, been unreasonable in the conduct of the litigation. See Sutton London Borough Council v Davis (Costs) (No 2) [1994] 2 FLR 569.

6.  In S v S HCMP 5547/1999, Deputy High Court Judge Gill when summarizing the various cases then available on the subject elaborated on this point when he said as follows:  

From these authorities one can, I believe, summarize the following factors which might determine how a court should approach a contest on costs in a case involving a child or children:

1.   In general circumstances there should be no order for costs.  Parties who have a reasonable case to put forward going to a child’s welfare should not be dissuaded from doing so by threat of an adverse costs order if they do not succeed.  And in a child related case there should be no perceived winner or loser, save that it is the child who is the winner.

2.   If a party has by virtue of improper conduct attracted the proceedings which but for that may have been avoided then that might well warrant an adverse costs order.

3.   If in the course of the proceedings one party behaves unreasonably in his or her conduct of the litigation then that might be recognised in an adverse costs order.

4.   The financial circumstances of the parties and how an order for costs will impact on the parties is a factor for consideration.

5.   The general rule of not ordering costs should not deter a court from exercising its discretion to do so in circumstances it finds to be exceptional not necessarily limited to a particular category of cases.

The issue

7.  Unlike in other cases the issue here is not simply a matter of degree. Rather it is the mother’s case that given that she had no alternative but to seek legal assistance on this matter and that she was all along a reluctant participant in the process, that it is only fair and reasonable for the father to either pay for or to contribute towards her legal costs. It is of note that the father chose to represent himself throughout and thus he has no legal costs to speak of. Generally, as set out above, it is accepted that there should be no order as to costs in a dispute over children. As pointed out by the father in his submission, this is so that parents will not be discouraged from raising legitimate concerns which need to be properly ventilated and determined by the courts when considering the best interests of a child. However, there are exceptions to this general rule and the court’s discretion is in no way limited in this respect.      

Discussion

8.  In summary the mother said as follows in her written submission:

8.   Further as stated paragraph 14 and 15 of my affidavit catalogues some of the hostile steps taken by the Petitioner, including contempt proceedings as stated below six (6) other proceedings that the Petitioner has filed prior to this proceedings:

i.  Three (3) Contempt of Court proceedings dated Summons #1 dated 14 October 2015, Summons #2 dated 1 February 2016, Summons #3 dated 25 May 2016

ii.  Issued Summons for consent to remove children from the Jurisdiction and continued this proceedings even after I have given consent on 8th March 2016 and informed and reminded him that the hearing can be vacated due to consent being given (Summons dated 1 March 2016)

iii.  Forced me to seek a court order allowing the children to travel with me to attend my brother’s wedding, in circumstances where it was noted by the court that the petitioner should have simply granted such consent.  Respondent Summons dated 2 November 2015 (Consulted a solicitor to guide me with the requisite legal papers)

iv.  Finally, commenced these proceedings involving serious allegations, none of which he successfully proved. (Petitioner Summons dated 3 November 2016)

9.   In Summary, my filed affidavit dated 16 May 2018 enumerates seven (7) grounds for your honour’s consideration:

i.   The Petitioner made a number of serious allegations against me, none of which either the social worker or the Honourable Court accepted

ii. The Petitioner failed to obtain the relief he sought

iii.  The court made no adverse findings against me

iv.  Prior to the trial, the Petitioner rejected 2 reasonable settlement offers (please refer to paragraph 7 -12 of Respondent affidavit dated 16 May 2018 in support of this (“Application”) including relevant exhibit attached in the Evidence.

v.   Defending the proceedings caused me significant financial hardship, the severity of the allegations made by the Petitioner and the prospect of having shared care and control stripped away if left uncontested, left me with no option but to seek legal support from solicitor and counsel who (as the court will be well aware) charged very reasonable rates by Hong Kong standards, but still at very considerable financial cost to me on my income.

vi.  The oppressive nature of actions of the petitioner since the inception of the divorce proceedings as enumerated on paragraph 4, with the relevant dates these Summons were issued.

vii. Finally it must be in the best interest of the children that further court proceedings for trivial matters should have been mediated do not again end up in lengthy court proceedings. And only those claims which are legitimately require the intervention of the court should be bought before the court.

I largely accept what she says. In particular, I accept that funding the litigation costs would have been extremely difficult for her, given her limited income. Although the father is responsible for more of the children’s direct costs, nevertheless he has a much higher disposable income than that of the mother.

9.  As I understand it the judgments that provide us with precedent when considering costs orders in relation to children matters, were made on the premise that both parties were legally represented throughout. I am not aware of any reported decision where that is not the case. The ethos behind the no order as to costs principle is that both parties should be responsible for their own legal costs regardless of the outcome of the litigation. Thus neither party should be afraid of having a costs order made against them when raising a legitimate concern about their children. Generally speaking, if an adverse costs order is made against one party then they would be responsible for both their own legal costs and a portion of the other side’s costs. Such an order could be very significant from a financial perspective and could have very serious ramifications. The hope is that the no order principle would mean that this significant side effect of most litigation would be more limited where the dispute is about children. This does not apply however where one party is legally represented and the other is not. In such a case there is clear inequality from the start. In this instance the mother has been left with a crippling debt, whereas the father has not.

Conclusion

10.  In general I accept that the mother was perfectly within her rights to instruct solicitors and counsel to represent her. The allegations made by the father against her were serious and she was rightly concerned that she should not be disadvantaged in any way by the process, which she clearly found difficult. I also accept that she tried to settle matters with the father and that she has been the more successful party overall. I also note that she tried to mitigate her loss, so to speak, and that on occasions she did represent herself in court, but that she felt unable to do so at trial.

11.  Given that the mother has significant legal costs and seemingly the father has none, it seems to me that it would only be fair and reasonable for each party to be responsible for 50% of the mother’s party and party costs. There shall be certificate for counsel.

12.  Thus I shall make an order as follows:

The costs order nisi made by myself on the 2 May 2018 shall be varied so that the Petitioner do pay 50% of the Respondent’s costs, such costs to be taxed on a party and party basis if not agreed. There shall be certificate for counsel.     

13.  In so far as the costs of this summons are concerned I can see no reason why the costs shall not follow the event in the normal way. Consequently, the father shall pay the mother the costs of and arising out of her summons dated the 16 May 2018, such costs to also be taxed on a party and party basis if not agreed.