LWS v. LAJ

FCMC 10209/ 2017

[2018] HKFC 128

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 10209 OF 2017

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RULING
(Costs)

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Introduction

1.  On the 9 April 2018 this case came before me for a First Appointment hearing. I was told on that occasion that there was an agreement in principle that the wife would withdraw her petition but that the parties could not agree the issue of costs. In part this was because the wife was legally aided. Consequently, an order was made on that day that the petition be withdrawn and that costs be reserved. I further directed that if the issue of costs could not be resolved within the next two months i.e. by on or before the 11 June 2018, that leave be given for both sides to file and serve a short written submission on costs on or before the 16 July 2018. I further directed that there would then be a paper disposal on the issue.      

2.  As will be seen below the law on costs is not in dispute. Generally, it is accepted that costs should normally follow the event. This is subject inter alia, to the caveat in family proceedings that in the normal course of events there should be no order as to costs where there is a dispute over a child. 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.  

3.  In this case, although we are concerned about the costs following the withdrawal of a petition, it seems that that application was made in the context of a dispute over a child. Initially there were Hague proceedings in Hong Kong, which led to the mother returning to London with the child of the family. This was followed by a subsequent application by the mother in London for the permanent removal of the child to Hong Kong. At the end of the day the mother’s application in London was not successful and it was ordered that the child remain in the UK and that a shared care regime be put into place on a week on/week off basis. In the order from the High Court in London dated the 18 January 2018 the Hon Mr Justice Williams recorded inter alia as follows:     

7.   To date, the mother has not accepted the offer from the father, as set out above at recital 6, as she is not in a position to consider same as she has not yet had financial disclosure from the father. The mother has made clear at court on 17 January 2018 that she intends on forthwith withdrawing the divorce / financial proceedings in Hong Kong and issuing divorce / financial proceedings in England and Wales.  The parties have agreed at court on 17 January 2018 that they shall agree a consent order which is to be lodged by the parties’ Hong Kong lawyers with the relevant family court in Hong Kong in good time prior to the hearing currently listed on 29 January 2018, that consent order to state: (a) the mother seeks permission to forthwith withdraw her divorce / financial proceedings in Hong Kong and (b) both parties seek for the hearing currently listed on 29 January 2018 to be forthwith vacated.

4.  The parties lodged a consent summons with the Family Court in Hong Kong on the 26 January 2018 asking that the hearing on the 29 January 2018 be adjourned. This was granted and the matter returned to court on the 9 April 2018.

5.  The Respondent father’s initial position is that there should be no order as to costs. Given the significant delay, however, since the parties’ agreement on the 17 January 2018 (as recorded on the 18 January) he now asks for his costs since that date. His costs are said to amount to HK$26,489 and he asks that they be assessed on a summary assessment basis. It is of note that the Statement for Costs attached to the note is very broad brush. For example, no dates are given for the work undertaken. Nor is the nature of the work fully identified.

6.  The mother states as follows in her submission on costs:

2.  The Respondent/Husband proposes “no order as to costs” by an open letter from Ip & Healthfield dated 17 May 2018, a copy of which is enclosed.

3.  The Director of Legal Aid does not object to “no order as to costs” being made.

4.  The Petitioner/Wife’s contribution was assessed by the Director of Legal Aid as “Nil”. Consequently, her financial position will not be affected by the costs order that is made by the Court.

In other words, she now seems to accept that there should be no order as to costs. Nothing is said about the length of delay or the mother’s litigation conduct in that respect.

The law

7.  As indicated above the general rule, in normal circumstances, is that costs should follow the event. However, a costs order against one parent in a child related matter is considered unusual unless that parent has been unreasonable in the conduct of the litigation. See Sutton London Borough Council v Davis (Costs) (No 2) [1994] 2 FLR 569, Gojkovic v GojkKovic (No 2) [1992] 1 AER 271, S v S HCMP 5547/1999 and L v C CACV 169 of 2006). In addition, the father refers to a number of other cases in his submission including C v S [2017] HKCFI 1968 where the Hon Madam Justice Chu said inter alia as follows:

“As for costs in children cases, there is generally no order as to costs unless one party has been unreasonable in the litigation. In my view the mother has opposed this application unreasonably … Having considered her grounds of opposition, in my view, the Mother should bear the costs of this application. I am aware that the Mother is under legal aid, but that does not entitle her to oppose an application unreasonably. I therefore order that the Father’s costs of this application be paid by the Mother, to be taxed and paid forthwith. The Mother’s own costs be taxed under legal aid regulations.”

8.  It is also accepted that the “unreasonableness” that might justify such an order is unreasonableness in the conduct of the litigation. See for example R v R (Child) (Legal Aid: Costs) [1997] 2 FLR (also referred to by the father’s solicitors) when Wilson J said inter alia as follows:

“Although there was a general practice to not order costs in cases concerning children, courts retained a discretion to do so and in exceptional circumstances might be justified in ordering costs … The unreasonable conduct which might justify an order for costs was not unreasonableness in relation to the child concerned but unreasonableness in the conduct of the litigation”

The issue

9.  The issue here then, is whether or not the delay in withdrawing the petition and the mother’s refusal to settle the issue of costs in a sensible manner, is sufficient reason to make an order for costs against her, notwithstanding the fact that this is played out against child related litigation.     

Conclusion

10.  In my view, it seems to me that although unfortunate, the mother’s behaviour does not, at this stage, cross the boundary of what may be considered to be acceptable/unacceptable litigation conduct. Consequently, I shall make an order that there be no order as to costs occasioned by and arising out of the order dated the 9 April 2018. The costs shall be taxed on a party and party basis if not agreed. The mother’s own costs to be taxed in accordance with Legal Aid Regulations.

11.  I think though I should also sound a word of warning at this stage.  I have noted that a related matter is due to come back before me on the 22 August 2018, in an application by the father under Guardianship of Minors Ordinance, Cap 13, for a mirror order. I have noted that there is an inference in the High Court order that this was expected given that permission is given at paragraph 27 as follows:

Other orders

26.  Any future applications in respect of the child shall be issued in the High Court and shall be reserved to Mr Justice WILLIAMS, if available.

27.  There shall be permission to the parties to disclose this order, the court’s judgment dated 16 January 2018 and the papers in these proceedings to all lawyers instructed on behalf of either of the parties in Hong Kong, and into any current or future proceedings in Hong Kong in respect of the parties and / or child.

12.  All things being equal I would expect, in a situation like this, that a mirror order should be obtained in Hong Kong and that this be dealt with by consent. I note that the mother is now acting in person. Nevertheless, this is a matter that can and should be dealt with fairly easily notwithstanding the differences in terminology used in each jurisdiction. If the mother is unreasonable in this respect, she should not necessarily expect the court to make no order as to costs on the next occasion. Parents must understand that they have a positive duty to try to negotiate practical and sensible agreements with respect to their children. This includes mirror orders.