BKGGB also known as NGGB v. BKND

FCMC 1410/2019

[2021] HKFC 243

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 1410 OF 2019

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

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

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

R U L I N G

(Variation of Costs Order Nisi)

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

1.  This is an application made by the Petitioner Mother (“M”) by Summons filed on 2 July 2021 (the “Costs Summons”) supported by her 15^th Affirmation to vary the costs order nisi made by me in a decision handed down on 24 May 2021 relating to her application for removal of two children of the family to the UK (the “Relocation Decision”).

2.  In the Relocation Decision, I granted leave to the M, and made no order as to costs.  She had since departed with her children for the UK in late August 2021.

3.  I will first state here that as I am not the docketed Judge, I was not privy to what happened at prior direction hearings.  I will focus on the evidence from relocation trial itself and what other evidence that has been filed with the Court for this application.  This decision should be read against the background of the Relocation Decision.

This Application

4.  The Respondent Father (“F”) filed his 18^th Affidavit, in opposition, on 14 July 2021.

5.  Pursuant to the directions I gave on 30 July 2021, W filed her 20^th Affirmation in reply on 19 August 2021. 

6.  Submissions were exchanged on 30 August 2021.

The M’s Case

7.  The M’s counsel submits that the following F’s unreasonable litigation conducts should be taken into account, and are broadly categorised as follows:

i.  That the F is not credible;

ii.  That the Children’s financial support has been compromised;

iii.  That the F had the ability to pay Court Ordered payments to the M but did not do so;

iv.  That the M is in financial hardship;

v.  That the F’s case on relocation has been entirely inconsistent; and

vi.  Despite this being a relocation case, that there was ultimately no cross examination of the M or challenge to her relocation plan at trial.

8.  The M’s affidavit further alleged that she was forced into substantial litigation spending with the F knowing that she has limited funds, he was un-cooperative in his mediation stance, insisted on speaking through lawyers incurring substantial costs, changed his stance, and had caused repeated and deliberate delays.

9.  The M relied on the District Court decision in TPL v WWY FCMC 15332/2011, in which the father in that case had behaved so unreasonably that the Court made a costs order against him.

10.  According to her Form H, the M has incurred HK$4.6M up to the date of her submission. 

The F’s Case

11.  The F is acting in person. 

12.  In his submission, and as he did when he sought leave to appeal against my Relocation Decision, he quoted cases to assist the Court; including:  Gojkovic v Gojkovic; the Court of Appeal decision in TPL v WYY (CACV47/2014 15 December 2014 unreported) and D v G [2001] HKCU 1179.

13.  F claimed that M did not succeed in obtaining a sole custody order, and therefore did not succeed in all her claims.

14.  He also claimed I did not award costs against him when I dismissed his leave to appeal application on 25 August 2021, and that this was “in accordance with general practice”.  Other than the fact that what I ordered in a leave to appeal decision is irrelevant, he was actually incorrect as I reserved costs on that application.  He further claimed to be bullied by the M as he alleged that she denied him access of the children; and also bullied him financially, and made his life difficult.  As a result of which he is forced to act in person as he owes his previous solicitors his legal fees.

15.  In the F’s affidavit, he stated that there was a need to go to trial because of the book collection, so as to exonerate himself from the wrongful allegations that the M made against him; and he was not willing to attend mediation as M insisted on supervised access; that the ISS officer needed to be cross examined due to the S.47 enquiry in the UK that the M had allegedly triggered.  He claimed that the CDR would not work because the M insisted on sole custody, and also complained about the number of Summons the Mother had taken out to which he had to respond as he felt that his access to the children was being obstructed.

16.  According to his Form H, F had spent at least HK$14.7M on legal costs.

The Issue

17.  The only issue I have to consider is whether I should vary the Costs Order I made in Relocation Decision.

Applicable Legal Principles

18.  The principle is trite that the Court has very wide discretion on the issue of costs. While the usual order to be made is that costs should follow the event, other approach can be considered.  Order 62 RHC Rule 3(2) states as follows:

“If the Court in the exercise of its discretion sees fit to make any order as to the costs of or incidental to any proceedings (other than interlocutory proceedings), the Court shall, subject to this Order, order the costs to follow the event, except when it appears to the Court that in the circumstances of the case some other order should be made as to the whole or any part of the costs.”

19.  I shall also have regard to Order 62 Rule 5(1) and (2),

(1)  The Court in exercising its discretion as to costs shall, to such extent, if any, as may be appropriate in the circumstances, take into account—  

(aa) the underlying objectives set out in Order 1A, rule 1; 

(a) …..

(b)  …..

(c)  ….. 

(d)  …..

(e)  the conduct of all the parties; 

(f)   whether a party has succeeded on part of his case, even if he has not been wholly successful; and 

(g)  ….. 

(2)  For thepurpose of paragraph (1)(e), the conduct of the parties include

(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”

20.  It is also trite that in the family court, the discretion on costs maybe broader than in civil matters generally.  On this I rely on HHJ I Wong’s judgment in the case of SSLT v SMFC FCMC 11056/2017:

“23. Thus, the court has full power to determine by whom and to what extent the costs are to be paid. The discretion of the court is much wider in family cases and the starting point is more easily displaced than in any other civil proceedings. In TL v SN, CACV 196/2009(19 October 2010), Kwan JA, in her unanimous judgment for the Court of Appeal, reaffirmed that in matrimonial cases, as in other cases, costs should normally follow the event. This approach was reaffirmed in Z v X & C, CACV 166/2011 (8 March 2013) where Cheung JA said that costs should follow the event although because of the special dynamics of family litigation, the discretion may be broader than in civil matters generally: at [10].”

21.  The principles enunciated in our Court of Appeal in the case of TPL v WYY CACV 47 and 61/2014in the following paragraphs are also of relevance:

“General practice” - no order as to costs

14.1. One starts with the "proposition" or "general practice" (though not a "principle": see London Borough of Sutton v Davis (Costs) No.2 [1994] 2 FLR 569 at p570H) that in applications to do with children, the usual order should be no order as to costs.

14.2. This approach stems from the aspiration that in these applications the court is seeking to find an arrangement which is best for the children, so that the only "winner" is the children, and neither parent should be regarded as the "winner"/"loser", although they had mutually exclusive proposals regarding custody and care and control.

14.3. The rationale is that when a court considers custody and care and control of children, the proceedings are inquisitorial rather than adversarial. In the court's search for the best option available, it does not wish "the spectre of an order for costs to discourage those with a proper interest in the child from participating in the debate. Nor does it wish to reduce the chance of their co-operation around the future life of the child by casting one as the successful party entitled to his costs and another as the unsuccessful party obliged to pay them" (LB of Sutton v Davis (No.2) at pp570H -571C).

14.4. As the English court of appeal observed in R v R (Costs: Child Case) [1997] 2 FLR 95 at p97, there is a "possibility that in effect a costs order will add insult to the injury of having lost in the debate as to what is to happen to the child in the future; it is likely to exacerbate rather than to calm down the existing tensions; and this will not be in the best interests of the child".

14.5. Having said that, this general practice is not a rigid rule. In particular, the court must be careful that this approach to costs should not be abused e.g. in cases where one parent has more means at his disposal than the other who does not qualify for, or prefers not to use, legal aid. The practice should not provide the opportunity for one parent to wear the other down financially by means of multiple interlocutory skirmishes.

….. 

Exceptional circumstances

15.1. 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 (LB of Sutton v Davis (No.2) at p571B-C, following Havering LBC v S [1986] 1 FLR 489 and Gojkovic v Gojkovic (No. 2) [1992] Fam 40).

15.2. However, 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 Hale J (now Baroness Hale SCJ) observed in R v R at p98B,  

"The fair point is made that in children cases 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".

…..”

22.  I will also be guided by the principle cited by Hartmann J (as he then was) in the case of F v F (No 2) [2003] HKLRD 976 wherein he said that:

“… the long-established principle that costs are determined not by dividing litigation into quantifiable subjects and figures, like a profit and loss account, but rather by way of overall impression.” (§22)

23.  I shall consider this application with these principles in mind, the ultimate goal for this Court is what costs order would be a fair and just one in the light of the circumstances.  I also remind myself that the conduct that is relevant should be ones that is related to the relocation application.

Discussion

24.  I had in my Relocation Decision made the observations of the volumes of documents, exhibits and correspondences in these proceedings; I repeat here that there were 12 bundles of exhibits and 10 bundles of correspondences for a Removal Summons that was taken out only in January 2020; the costs incurred were clearly disproportionate to the issues (See §§190-192 of the Relocation Decision).

25.  The M said that “For the purpose of the Relocation and Children Trial in December 2020, a total of 28 affirmations / affidavits were filed and 331 letter exchanged between OLN and Withers and the Court … There have also been seven side hearings, three CDR hearings, three social welfare reports and a six day Trial.” (M’s 15^th Affirmation §12).  If this was true, and Father did not contest this, this meant there were in average 2 affirmations / affidavits per month, and almost a letter a day. The amount of summons, hearings and correspondences following the relocation application is testament to the fact that the parties spent a lot of time and money dealing with each other’s stances, complaints, and applications.  I recognize that for the most part, the parties had conducted these proceedings in such a way that an exorbitant amount of costs had been incurred, and against a background in which there is clear disparity in the financial resources of the parties, where the F clearly has the upper hand.

26.  Parties have submitted tables which aimed to list out the proceedings which had taken place in between, the result of those proceedings, and to some extent, the costs involved.  While not intending to engage in any deep-dive into this time / costs-to-subject analysis, it is clear that both sides had initiated summons to which on-going and extensive legal exchanges were required.

27.  M submitted a number of information in her affirmations to substantiate her position that F had been unreasonable in his litigation conducts, I have considered all the factors, but shall deal specifically with those points which I find to be salient, and which the F did not address in his affidavit nor submission.

No challenge to the relocation plan

28.  It was the M’s case that F, at a hearing on 10 September 2019, did state that he was in support of the M going back to the UK.  He later tried to qualify and caveat this statement and then changed his stance.    

29.  It was a fact that there was indeed no cross examination of the M about her relocation plan at all during the 6 days trial.  F had continuously maintained that he opposed relocation, but while M was in the witness box for a number of days, at no point did F put his case with regard to the basis of his objection to the relocation or its arrangement.  This was true even after the S.47 enquiry in the UK (which purportedly might have affected his access to the children) had come to light. 

30.  Looking back at the F’s closing submission, his counsel wrote the following:

“As noted above, F would not oppose relocation a few years’ time, when he is assured that his access has been consolidated [§168] …”

The F said the same thing to the SWO, and it appeared in her Updated Social Investigation Report in November 2020 where he recorded that the F had no objection to the children leaving in a year’s time.

31.  The bulk of the case was in fact focused on the access arrangement, and the basis of the M’s ask for it to be supervised.  It is recognised that the relocation is necessarily tied to the resultant access the F would have after the children left HK.  However, if the F had made his position clear at an earlier stage; there is no doubt that costs could have been saved to a certain extent.  The Court would also be in a position to determine that the issues could be narrowed down to sole versus joint custody; and whether access is supervised or otherwise.

Delays

32.  M alleged that there were delays caused by F, at least in the following instances, which I take into consideration:

 i.  The F’s attempt to apply for legal aid, which was baffling in the light that he himself admitted to having HK33M (his submission §8);

 ii.  That there were attempts at adjourning a CDR putting forward extremely brief and unsubstantiated medical reason; when that failed he still did not attend resulting in the M incurring unnecessary legal costs;

 iii.  Despite asking for an ISS Report in March 2020 and agreeing to pay for its costs, it appeared that the F had delayed his payment, resulting in rescheduling of the trial dates from July to December 2020, during which on-going disagreement over access positions ensued with 3 more hearings before the December 2020 trial;

 iv.  F requested for a fact finding hearing just days before the December 2020 trial, this was turned down by the docketed judge DDJ S Wong, who also found that this was a delaying tactic on the part of the F.

33.  F had not dealt with these allegation of delay from the M at all.

Faked Order?

34.  What is also concerning is that the M had produced evidence that the F had produced an allegedly faked Order so that he could ask his nanny to take photographs of the children.  Recital D of the relevant Court Order dated 16 November 2021 read as follows:

“AND UPON the Petitioner and the Respondent agreeing and undertaking to the Court and to each other not to take any photographs or videos of the children … or each other whether by themselves, their servants or agents, or otherwise during the Respondent’s access.”

But what the F produced to the supervisor to the access, Mrs A, to justify his own nanny taking pictures read as follows:

“AND UPON the Petitioner and the Respondent agreeing and undertaking to the Court and to each other not to take any photographs of the children … or each other during the Respondent’s access.”

Mrs A reported that the F was shouting at her, forbidding her to take photos while saying that his nanny could.  Mrs A took a picture of what F produced, and contacted M to confirm whether this was the Court Order, which she denied. 

35.  This incident also led to M incurring further costs, and F made no mention of this serious allegation at all in his affidavit nor his submission.  This conduct is completely unacceptable, and in the light of F’s silence on this issue, I will take this into consideration.

Other considerations

36.  Despite I made the Order for joint custody rather than the M’s ask for sole custody; I did grant the M leave to relocate with the children, and also her ask for supervised access. 

37.  Looking at this in the round, and having in mind in particular the principle enunciated by Hartmann J above cited, I am of the view that there were litigation conducts on the F’s part which need to be taken into account in consideration of this costs order variation.

Conclusion

38.  For all the matters set out above and upon due consideration of all the circumstances of this case, I order that the costs order nisi shall be varied in that F contributes towards 25% of the M's costs of and arising out her Relocation application. This order shall also include all other related applications within the litigation and all costs reserved. There shall be certificate for counsel. The costs shall be taxed on a party and party basis if not agreed.

Costs of this Application

39.  M had achieved limited success in her application. F should bear 50% of the M’s costs of this application, to be taxed if not agreed; I so order with certificate for counsel.