L, T v. M, MD

FCMC 5131/2019

[2021] HKFC 86

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NO. 5131 OF 2019

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R U L I N G

(Costs)

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Introduction

1.  This is an application on paper to determine costs following, ultimately, an agreement reached between the parties concerning the arrangements for the two children of the family. There is a mediated agreement dated the 23 August 2019, a consent summons dated the 24 December 2020 and finally an order of the court dated the 7 January 2021. The Petitioner mother seeks her costs from the date that she says the father reneged on the mediated agreement, on the 5 September 2019, until the 7 January 2021, when the final order was made. She does not say on what basis she is seeking those costs. In any event the father resists this application and although aggrieved about the way in which the litigation has been conducted asks, nevertheless that there be no order as to costs. 

2.  It is an obvious point, but nevertheless one worth making, that given that the order was made by consent, the court has not made any findings of fact nor come to any conclusions in relation to the issues, given that there was no trial and therefore no judgment. This includes any findings with respect to litigation conduct. Notwithstanding that both the submissions and the affidavits are littered with countless accusations made by one party against the other and are couched, on occasion, in extraordinary inflammatory terms. For example, it has been said on behalf of the mother that:

“11. In the present case, the conduct of the father since the very first day of litigation commencing has been appalling, fuelled by a sense of vengeance and a determination to bring the Mother to her knees”. (Submission on costs – paragraph 11)

3.  The submission goes on to refer inter alia, to the father’s appalling conduct, his hostility and to the fact that he “reneged” on the terms of the mediated agreement. He is said to be manipulative and to have shown no genuine intent to resolve matters. In conclusion it is said that:

27. The father’s approach to these proceedings was to delay, intimidate, bully and make himself as difficult as possible. His conduct goes far beyond the test of what is reasonable”.  (paragraph 27 of the submission).

4.  The father for his part refers to the excessive number of letters written on the mother’s behalf and to the overly aggressive way that the mother’s solicitors conducted the litigation. He denies all of the allegations made against him.

5.  For the avoidance of doubt I repeat, as I have done many times before, that THIS IS NOT A HELPFUL approach, not to the court and certainly not to the parties. It is also singularly unhelpful for the lawyers to enter into the fray, as they certainly appear to have done from time to time during the course of this litigation. It is highly unprofessional and, as the parties have found out, it can also be extremely expensive. It does not assist the parties in coming to terms with the end of their relationship nor does it help them effectively co parent.

6.  I should add that here, the only real argument concerned the amount of time that the father was going to have with the children. It has been said that orders for children can never truly be final, especially when the children are young. In this instance the children are now aged nearly 7 and 5 years of age. At the date of the mediated agreement, they would only have been 5 and 3 years old respectively. Thus, it is almost inevitable, that the arrangements for the children are likely to have changed over time. It seems that in this instance the father entered into the mediated agreement before he had had sight of a psychological report. The lawyers did not attend that mediation and it is not clear why the parties entered into this agreement, knowing as they both did, that a psychological report was pending. In any event the report was largely favourable to the father. A Social Investigation Report filed just before the mediation had similarly been relatively positive about both parties and their relationship with the children.

7.  In such circumstances it was unfortunate, but perhaps not surprising, that the father sought to re-open the issue of the care arrangements after receiving the psychological report. Originally, he had asked for shared care on a more or less 50:50 basis. He was further bolstered in this when an updated Social Investigation Report dated the 20 January 2020 also spoke in favourable terms of his relationship with the children. At the end of the day the final order increases his time from 6 to 10 days per month, which is not insubstantial, given the circumstances. I therefore do not accept, as has been suggested, that the final order is the same in nearly all respects as the original mediated agreement. Thus, the father says, and with some justification it seems to me, that he was right to “hold out” for a better deal.

The issue

8.  The only issue then is what order should now be made for costs given these prevailing circumstances?

The Law

9.  Ms Kwan for the father has referred me to the case of LEYY and UKWK [2020] HKFC 118, where I made an order that the father do pay half of the mother’s costs, following a trial, where significant findings of fact were made with respect inter alia, to the father’s behaviours. In that judgment I set out the general legal principles as follows:    

Legal principles

4.Although costs are always in the discretion of the court, it is accepted that a costs order made against one parent in a child related matter is generally considered unusual unless that parent has, for example, been unreasonable in the conduct of the litigation or has behaved in a way that is somehow reprehensible, or beyond the limit of what might be regarded as reasonable. See Sutton London Borough Council v Davis (Costs) (No 2) [1994] 2 FLR 569, Gojkovic v Gojkovic (No 2) [1992] 1 AER 271, S v S HCMP 5547/1999 and L v C CACV 169 of 2006).

5.     Thus, in the normal course of events, regardless of the outcome, the court would normally make no order as to costs following a trial on a children’s matter. To that end, Ms Irving for the mother has also referenced the following English cases in her written submission:

5.   The principle that reprehensible behaviour, or behaviour beyond the band of what is reasonable, may result in an order for costs against that party was set out in Keller v Keller and Legal Aid Board [1995] 1 FLR 259 at 265 per Wilson J.;

“No one suggests that the court’s discretion in respect of costs under s 51 (1) of the Supreme Court Act 1981 has become emasculated in children cases. The position is only that in most such cases, indeed in ordinary cases, the proper weighing of the factors in the exercise of the discretion is likely to lead to the choice of no order …. Where, for example, the conduct of a party has been reprehensible or his stance in the litigation has been beyond the band of what is reasonable, an order for costs might well be made against him.” [emphasis added]

6.   When assessing whether a party’s conduct has been unreasonable, what should be considered is unreasonableness in the attitude to the litigation. In R v R (Costs: Child Case) [1997] 2 FLR 95 at 98B, per Hale J.

7.   In Re G (Costs: Child Case) [1999] 2 FLR 250, per Butler-Sloss LJ at 252G:

“If this judge in this case had found that this Father had behaved unreasonably in the litigation and had gone beyond what many Fathers do, seeking orders which are hopeless, the point will come at which pursuing a hopeless application becomes unreasonable. But hopelessness and unreasonableness are not necessarily the same thing. Indeed, particularly where there is a litigant in person, a degree of generosity towards a litigant may be more appropriate than to a litigant which is on legal aid generally advised by counsel and solicitors as to the extent to which they should continue to litigate.” [emphasis added]

Her Ladyship then added at 253D:

“It seems to me that the case of R v R does not change the normal situation that it is unusual to order costs, although it will be appropriate to order costs when a parent, even a litigant in person, goes beyond the limit of what is reasonable to pursue the application before the court.” [emphasis added]

6.      This general approach was also reiterated in the later case of Re T (A Child) [2005] EWCA Civ 311, where the Court of Appeal in England and Wales repeated the general principles on costs in child related matters as follows:

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. (Gojkovicv 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.

7.     Reference may also be made to our own Court of Appeal decision in TPL v WYY, CACV 47 & 61 of 2014, which also reiterates these general principles.

Discussion

10.  In this instance the Petitioner mother, is seeking her costs on the premise that the father’s litigation conduct and the manner in which the litigation was conducted by him, was such as to justify a cost award in her favour. She says that costs have been incurred and have increased as a direct result of his litigation conduct. Although, as I have said, this is said in the context of an agreement reached as opposed to an application made following a trial and subsequent judgment.   

Conclusion

11.  Both sides have spent considerable time and effort trying to persuade me that they were reasonable in their approach and that the other side was not. Ultimately, I have not been persuaded. This was clearly a highly conflicted case, where each side behaved on occasion, in ways which were and are questionable. In particular the language used in some of the correspondence was completely unacceptable. There is no excuse for this, whatever the provocation. However, I am not persuaded that either side has behaved in a way that is “reprehensible” “or beyond the limit of what might be regarded as reasonable”. Especially as ultimately they came to terms. Consequently, I can see no reason why the normal approach should not be adopted here. I am not persuaded that the litigation conduct of the husband was such as to invite an adverse costs order being made against him. Consequently, it follows that there shall be no order as to costs, with respect to the children’s litigation including costs arising after the 5 September 2019 and up until the date of the consent summons on the 7 January 2021 and since. I have considered whether an order should be made against the wife with respect to this application. This was her application. She has not succeeded in that application. She has made it notwithstanding her own questionable behaviour and in particular the aggressive use of language adopted in much of her solicitor correspondence, which has continued in her submissions to the court. However, ultimately, I accept that there has been fault on both sides throughout. Consequently, I shall further exercise my discretion in that there shall also be no order as to the costs of this application.