FKYP v. KHYF

FCMC 7952 / 2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 7952 OF 2012

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D E C I S I O N
(Costs of Application for Leave to Appeal and Stay of Execution)
(Disposal on the papers)

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1.  I shall refer to the “Petitioner” and the “Respondent” as the “Father” and the “Mother” respectively.

2.  After a 12-day trial, by a Judgment handed down on 28 August 2013, it was ordered that:

(a) Joint custody of the children of the family be granted to the parties;

(b) The care and control of the two children be granted to the Mother with reasonable access to the Father; and

(c) Permission is granted to the Mother to bring the children back from Shanghai to Hong Kong.

3.  The Father applied for leave to have the Court of Appeal moved for an order that the said order dated 28 August 2013 be set aside to the effect that the care and control of the children of the family be granted to the Father and the children shall continue to reside with the Father in Shanghai with reasonable access to the Mother.  At the conclusion of the hearing dated 16 October 2013, the Father’s application was refused with reason to be given in writing.

4.  By a Judgment dated 18 October 2013, it is ordered that the application for leave to appeal and the consequent application for stay of execution be dismissed and it is ordered nisi that unless any party has applied for variation of the order nisi within 21 days thereof, there shall be no order as to costs, save that the Mother’s own costs be taxed in accordance with Legal Aid Regulations.

5.  This is the Decision on the Mother’s application for an order that the Father do pay the Mother the costs of the application for leave to appeal and stay of execution.  The parties have agreed that this application is to be disposed of on the papers.

6.  The Mother contends that the usual rule of costs to follow the event ought to apply under the circumstance of this case for the reason that in short, the Father’s application for leave to appeal is unmeritorious. The Mother relies on cases namely TPL V WYY (formerly known as WYY) FCMC 15332 of 2010, Deputy District Judge S. Lo, 29 January 2013 and CCMJ V SSM (formerly known as SKL) FCMC 67 of 2010, Deputy District Judge J. Own, 11 January 2013 in support of her contention.

7.  Obviously, the cases mentioned by the Mother are decided on their own facts.  Costs orders in children cases remain relatively rare.  The requirement for such an order to be made is that a party has been unreasonable in the conduct of the litigation or where there is a marked disparity between the means of the parties.  The general approach of no order as to costs in children litigation was summarised by Neill, LJ in K v K (legal aid: costs) [1995] 2 FCR 189:

‘… it has become the general practice in proceedings relating to the custody and care and control of children to make no order as to the costs of the proceedings except in exceptional circumstances. In Sutton London Borough Council v Davis (No. 2) [1994] 2 FCR 1199 AT P 1202d Wilson, J threw some useful light on the reasons for this present practice, the existence of which was recognised in this court by Butler-Sloss, LJ in Gojkovic v Gojkovic (No 2) [1991] 913 at p 916H. The court of course retains the jurisdiction and a discretion to award costs in suitable cases. It is unnecessary and undesirable to try to limit or place into rigid categories the cases which a court might regard as suitable for such an award, but examples would be likely to include cases where one of the parties had been guilty of unreasonable conduct or where there was such a disparity between the means of the parties that a special order was justified.’

8.  In Ridehalgh v Horsefield [1994] 3 All ER 848, a case on the making of a wasted costs order against legal representatives, the English Court of Appeal gave definitive guidance concerning the meaning of the words “improper, unreasonable or negligent”.  In there, it is said that “unreasonable” describes conduct which is vexatious, designed to harass the other side rather than advance the resolution of the case, and it makes no difference that the conduct was the product of excessive zeal and not improper motive, since the acid test is whether the conduct permitted of a reasonable explanation.  In my judgment, the Father has had a weak case in relation to the application for leave to appeal.  However, I do not regard that his application for leave to appeal is vexatious or designed to harass the Mother.  On an assessment of the matter in the round, it does not appear to me that the Father’s conduct in the said application has come within the category of unreasonable litigation conduct such as to enable the Court to exercise its discretion as to costs against him.

9.  Accordingly, it is ordered that there be no order as to costs of and incidental to the Father’s application for leave to appeal, including the application for stay of execution and this application, save that the Mother’s own costs be taxed in accordance with Legal Aid Regulations.