MAO v. NCB

FCMC 14742 / 2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 14742 OF 2010

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BETWEEN

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R U L I N G
(COSTS)

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Introduction

1.  This is an application by a petitioner mother for costs following my judgment of the 19 March 2012, when following a trial of 4 days, I granted sole custody and care and control to the mother with defined access to the father. I made an order nisi that there be no order as costs, such order to be made absolute in 14 days time. The mother now challenges the order nisi in accordance with Order 52, Rule 5 (B)(3) of the Rules of the District Court. She asks for the costs of and occasioned by her application for sole custody.

The issues

2.  What order should the court now make with respect to costs? Should the father be penalised in any way?

The mother’s case

3.  The mother relies on the fact that on the 23 December 2011 the father’s solicitor wrote to the mother’s solicitors inter alia in the following terms:  

In the circumstances, on the strength of the promises M-e (the mother) made on oath in her affidavit, and on the consideration of the best interest of M, (the child) our client therefore agrees to give the sole custody of M to your client on the following terms:

(1) That your client undertakes

(a) to stay in close contact with our client, and to immediately inform him of any change of contact number or email address;

(b) to facilitate reasonable access of M to our client at her best effort;

(c) to facilitate contact of M with his father and his paternal relatives;

(d) to discuss with our client on all important matters relating to M including his place of residence, matters relating to education, health and other important matter as they arise;

(e) to arrange for staying access in due course; and

(f) not to hinder or interfere with his future job seeking.

(2)  Each party to bear their own costs which were incurred on all matters relating to the custody of M.

Our client agrees that the previous arrangement on day access should continue and shall be subject to change and review in the future in order to accommodate N’s (the father) need to attend work.

We trust that the above arrangement is most reasonable and will best serve M’s interest.  No doubt your client will appreciate that our client agrees to make such big concession out of his care and love for M.  If your client unreasonable refuses to the same, we have standing instruction to proceed to a full blown trial and that our client is confident that he can persuade the Judge to award an Order for joint custody based on the aforesaid reasons.  We will also produce this letter to the Court when the question of costs arise and to seek from your client, where appropriate, costs on indemnity basis.

Please take your client’s urgent instructions and let us have your feedback as early as practicable.

Nothing in this letter shall be construed as any admission on our client’s part, and all our client’s rights are expressly reserved.

4.  The Christmas holiday period then intervened. On the 4 January 2012 the mother’s solicitors responded as follows:

We are instructed that N’s unreasonable behaviour and threats are continuing.

Nevertheless we are pleased that N does now agree to sole custody and have drawn up a Consent Summons which is enclosed.  Looking at the conditions, please note the following:

(a) We are not sure why N is seeking this as M-e has had the same contact number and email address since prior to these proceedings.  Nonetheless, M-e will inform N of any change of contact number or email address.  She will not, however, stay in close contact with him other than to deal with any necessary issues in respect of M.  N has to accept that the marriage is over.

(b) She has been facilitating reasonable access to her best efforts.  N however is not to harass her over this and the non molestation order and non harassment undertakings are to remain in place.

(c) This is agreed.

(d) This is agreed but that M-e will make the ultimate decisions following discussions in the event matters cannot be mutually agreed.

(e) Staying access will be considered once matters have stabilized and certain safeguards are in place.

(f) This is not agreed as M-e has never hindered or interfered with N’s job seeking.  This is an unreasonable condition and unnecessary.

This state of affairs could have been brought about when we had a meeting on 6^th October 2011.  M-e was prepared to discuss the conditions.  Her assurance offered then have now been accepted by N.  The costs of her two Affidavits would have been saved and also her legal costs throughout these proceedings if N had not behaved so unreasonably.  M-e has a strong claim for costs and will pursue this if the custody matter has to go to court.

5.  A consent summons was attached to the letter. The mother was under the misapprehension at that stage that settlement had been achieved. On the 6 January 2012 Mrs Casewell rang the father’s solicitors and was told that they were still seeking instructions. This is reflected in the letter from the mothers solicitors dated the 6 January 2012.

6.  On the 11 January 2012, the first day of the hearing, the father’s solicitors applied to come off the record. I granted them that application. The mother’s solicitors had not known even at that stage whether or not the trial would proceed and if so on what basis, given that they had believed quite reasonably that settlement had been or should have been achieved.    

7.  In addition the mother points to the high level of conflict that has peppered these proceedings. I do not wish to repeat the findings made by myself in the judgment, but suffice it to say that they still stand. The situation is best summarized by paragraph 3 when I said as follows:

Constant themes throughout the proceedings have included concerns about the Father’s mental health with particular reference to his bullying, volatile and unpredictable behaviour which is usually, but not always, directed against the Mother. This is against a backdrop of the Father’s accepted history of ADD and depression. The Mother also alleges that the father has been violent at times and she has threatened to seek injunctive relief from the court when the situation has warranted it. The father denies any physical violence. This is largely accepted by the mother. Her complaint is mainly in relation to what she perceives of as verbal intimidation and harassment.

8.  The mother says that she incurred additional costs because of the way in which the husband chose to conduct these proceedings.

The father’s case

9.  The father says that he did not instruct his lawyer to concede sole custody. He says that all he has ever tried to do is to be a good father to his son.

The law

10.  It is generally said to be the case that  

… the general rule in normal circumstances is that costs follow the event but that costs orders against one parent or another are exceptional in cases involving children.

11.  Further as pointed out by Mrs Casewell for the mother

The general principle in children’s matters is that “there should be no order as to costs save when one party has been unreasonable in the conduct of the litigation, as parents should not be deterred from putting cases concerning children before the courts”.  Sutton London Borough Council v Davis (Costs) (No 2) [1994] 2 FLR 569 and Gojkovic v GojkKovic (No 2) [1992] 1 AER 271.  This has been followed in Hong Kong.

12.  I agree that this is the court’s general approach. The mother has taken me to a number of cases which support this general proposition (see S v S HCMP 5547/1999 and L v C CACV 169 of 2006).

13.  In S v S HCMP 5547/1999, Deputy High Court Judge Gill went through the authorities then available and 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.

14.  This general approach is echoed in the English case Re T (A Child) [2005] EWCA Civ 311, where the Court of Appeal set out the general principles on costs in child related matters:

36. The principles, which fall to be applied, are not, we think, in dispute.  The judge summarised them succinctly in the following way:-

“2.1 The CPR apply. Under normal circumstances, according to rule 44.3(2)(a), the general rule is that costs should follow the event, although the court can make a different order. ( Rule 44.3(2) (b) )

2.2 However, this general rule does not apply to family proceedings. ( Family Proceedings (Miscellaneous Amendments) Rules 1999 )

2.3 It is suggested that even in family proceedings, the general rule is probably the starting point but can more easily be displaced. ( Gojkovic v Gojkovic (No 2) [1992] Fam 40 )

2.4 In cases involving children in particular, costs awarded against one parent or another are exceptional since the court is anxious to avoid the situation where a parent may feel “punished” by the other parent which will reduce co-operation between them. This will only impinge ultimately on the welfare of the child or the children concerned. ( London Borough of Sutton v Davis (Costs) (No 2) [1994] 2 FLR569; Re: M (Local Authority’s Costs) [1995] 1 FLR 533 )

2.5 The conduct of the parties is in reality the major consideration when deciding whether or not an exceptional order for costs should be made. It should only be made if the penalised party has been unreasonable in his or her conduct. Moreover the “unreasonableness” must relate to the conduct of the litigation rather than the welfare of the child. ( R v R (Costs: child case) [1997] 2 FLR 95 )

2.6 One has to be very careful in this distinction when, as in the case of (the mother), the apparent unreasonableness is as a result of the personality of the relevant party. In such circumstances, there is often an overlap of that party’s conduct of the litigation and the conduct relating to the welfare of the child.

15.  In this case there is no doubt that the father acted in the most appalling way at times.

What order then should the court now make with respect to costs? Should the father be penalised in any way?

16.  On the 23 December 2011 the father appears to have agreed to sole custody to the mother, subject to certain undertakings being given. These were largely accepted by the mother. He then appears to have reneged on the agreement at the last minute necessitating a full trial on all issues. This can and should have been avoided. I will therefore order that the father do pay the mother’s costs from the 23 December 2011 until the handing down of the judgment on the 19 March 2012, in so far as they relate to custody, to be taxed on a party and party basis if not agreed. Mrs Casewell estimated the mother’s costs from shortly before this period i.e. from November 2011 – March 2012 at c. HK$190,000. These will include the costs of trial. If there is any merit in the father’s stance i.e. that he did not instruct his solicitors to concede sole custody, then he must take that issue up with them.

17.  In so far as the costs prior to December 2011 are concerned, it has to be said that the father has on occasion behaved very badly. This was not the approach that one might have expected from a normal loving father who only had his son’s best interests at heart. The father must accept some responsibility for the way in which he chose to conduct these proceedings. However I have also taken on board the husband’s declared mental health issues and the fact that he does genuinely appear to believe that it would have been in M’s best interest for there to be a joint custody order. Bearing all of these factors in mind I will order that the husband do pay a 20% contribution towards the wife’s costs of and occasioned by the disagreement with respect to the arrangements for M up to the 23 December 2011. This is to penalize the father for his litigation conduct, which was at times completely unacceptable. The father shall also pay the mother’s costs of and occasioned by this application, again to be taxed if not agreed.