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B (Children) [2007] EWCA Civ 921

Application by mother for permission to appeal, with appeal to follow, an indemnity costs orders made in the course of Children Act and ancillary proceedings in a case where she represented herself. Application successful and appeal allowed.

The case turned on a communication that the mother was required to make to the Court for a hearing in early December 2006. Although the mother did not strictly comply with the terms required by the previous orders, Thorpe LJ concluded that the court and the opposing solicitors had been able to deduce that communication had taken place by reference to other materials. This alleged failure to communicate resulted in indemnity costs orders but since such orders should be used only in exceptional cases, Thorpe LJ overturned them and made no order for costs.


Case No: B4/2005/2869, B4/2005/2870
Neutral Citation Number [2007] EWCA Civ 921

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday, 21 February 2007


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(DAR Transcript of
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Mrs S Phipps (instructed by Messrs Charles Russell) appeared on behalf of the Appellant.

The Respondent appeared in person with the assistance of her McKenzie friend, Mr De Alvaro.
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Judgment (As Approved by the Court)

Lord Justice Thorpe:
1. The second stage of Mrs H's application for permission to appeal the order of HHJ Bradbury of 5 December 2005 has taken rather longer than it ideally should have done because of the fairly chaotic state of the papers in the case, and I express gratitude to the father's solicitors, Messrs Charles Russell and Co, who have prepared for us a paginated bundle of something recently submitted by Mrs H, which is said to be the appeal summary. It contains some 250 pages, which I suppose are to be taken to be in addition to the appeal bundle which was before me when I dealt with the case in court on 10 May 2006. It is unnecessary for the purposes of this judgment to say any more than that there were exchanges between solicitors to finalise orders to reflect agreement between the parents that the mother would relocate to Spain with the two children and that there would be a downward variation of periodical payments, to reflect the fact that the husband had left his former employment in, I think, the summer of 2005. However the mother, after her departure from Spain, withdrew her instructions from her solicitors; she says because she could no longer afford them. Thereafter Messrs Charles Russell were faced with the not uncommon problem of having to tie the final strings without professionals on the other side with whom they could communicate on issues that are essentially for lawyers rather than for clients.

2. Following the mother's decision to proceed without representation she did have a conversation with Mr Longrigg, the partner at Charles Russell, in the course of which she informed him that she was resiling from what had been agreed prior to her departure, namely monthly contact in this jurisdiction as well as monthly contact in Spain. It is not for us to go into the merits of the communication, but it is a fact that the mother had conceived in the summer and the pregnancy had proved to be a difficult one. Obviously that impeded her capacity to perform what had been agreed prior to her departure. In an endeavour to resolve all this, application was made to the court for orders in terms that had been more or less approved by the mother's solicitors before their withdrawal. Messrs Charles Russell were concerned that she might frustrate this final stage by non-attendance and so they applied without notice to the Senior District Judge, who on 30 November made an order:

"If the Mother cannot attend the hearing for a genuine medical reason, she shall send to the court and Charles Russell LLP by 12 noon on Friday 2 December 2005:

"(a) a medical certificate explaining her condition and why she is not able to travel to the hearing, whether by air, land or sea; and

"(b) any written representation she wishes the court to take into account in deciding whether to make the orders sought by the Father."

3. The mother's only communication to Messrs Charles Russell following the making of the Senior Judge's order was a lengthy letter to the solicitor with conduct, Miss Posnansky, in which she proposed variation of the contact arrangements which had been previously agreed and made some comments on financial issues indicating that she wanted more per child than had been agreed prior to her departure. The letter ends with the important final paragraph:

"I shall not be attending Court on Monday and so have taken the liberty of filing open letter with the Court, together with a certificate from my Doctor."

When the case came into court on 5 December, we see from the transcript of the proceedings that at the very outset counsel for the father Mr Brooks said to the judge:

"MR BROOKS: I hope your Honour has had a chance to read my case summary and my skeleton argument.

"JUDGE BRADBURY: I have, yes.

"MR BROOKS: I do not propose to say too much by way of opening, apart from raising a few important points, the first being the mother's non attendance. You will have gathered that we did appear before the District Judge last Wednesday and you will, I hope have seen the order of District Judge Waller?


"MR BROOKS: We did have a response, as your Honour is aware, from the Mother and this response appears [in the bundle]. The important part is actually in the letter attached to one of the emails.

"JUDGE BRADBURY: Yes, I see she has referred to a medical certificate. I have not seen that. I do not know whether it has arrived at the court or not.

"MR BROOKS: No. That was the request I had, your Honour. She also mentions an open letter which she sent. I presume that was the letter which was sent to us, although I do not know if another letter has been sent to the court.

"JUDGE BRADBURY: I do not know. I have not seen any papers sent to the court at all. All I have are the bundles which your solicitors have lodged."

4. Investigations which I initiated at the previous hearing on 10 May revealed that at 10.23 on 2 December the mother had transmitted to the Principal Registry of the Family Division a clear communication that what she was sending was urgently required for the hearing on 5 December. In terms it is headed in bold "Urgent". Underneath that, "For Hearing Monday 5 December to listing officer in the Principal Registry Family Division. Case numbers" -- and then fully cited are the case numbers, a fax number for her and then clear statement that it is from her with her telephone number and her e mail address. So that communication fell within the time limit set by the District Judge and the attachments to it were a medical certificate of 14 September, a letter to the judge and a copy of the letter that she on the same day sent to Charles Russell.

5. It can be said that there was not strict compliance with the order of the District Judge, which required her to make the transmission not only to the court but also to Charles Russell and Co and she failed to do that. The common transmission was only the letter of 2 December to Miss Posnansky. The other documents were sent only to the court. As a result of the attendance and the submissions of Mr Brook, orders were sealed in the following days; detailed orders to effect what had been agreed between solicitors both as to contact and as to periodical payments. But what is most unusual is that the judge, in response to Mr Brooks' invitation, made indemnity costs orders against the mother both in relation to the Children Act application and in relation to the periodical payments application.

6. He furthermore summarily assessed those indemnity costs: some £18,000 in relation to the Children Act proceedings and some £6,000 in relation to the periodical payments. So a hefty obligation was heaped upon the absent mother to pay costs summarily assessed at something in excess of £24,000. It was that order that essentially attracted the mother's application for permission to appeal which now receives its second listing, this time with appeal to follow if permission granted.

7. Now the further investigations that we have been able to make with the assistance of Miss Phipps, for the father, and her instructing solicitors reveal that as a result of regrettable error, the clear communication to the listing officer of 2 December was not transmitted to the judge on 5 December, so both the judge and Mr Brooks proceeded on the erroneous assumption that the mother had not taken advantage of the alternative mode of participation offered by the Senior District Judge's order. That is regrettable, particularly because had Mr Brooks and the judge given close attention to the final paragraph of the mother's letter of 2 December to Miss Posnansky, they would surely have been on notice that the mother asserted a communication with the court, both a letter and a certificate from the doctor.

8. What then are the consequences of the error? In my judgment they are fundamental because the judge's explanation for making what is a most exceptional order in Children Act proceedings is to be found essentially in paragraphs 4 and 6 of his judgment. In paragraph 3 he had referred to the mother's conduct since her departure for Spain; not responding to letters or e mails, not signing a proposed consent order. He continued in paragraph 4:

"That behaviour on the part of the mother inevitably has led to a considerable flurry of activity since she went to Spain -- activity on the father's solicitor's part, who had to issue an application before the Senior District Judge last week seeking an order that the mother attends today's hearing. In the event she has not attended and not participated in any way… These are all factors which I must consider in relation to the application for costs on an indemnity basis that the father now makes."

In paragraph 5 he then directed himself to the case of T (a Child) [2005] EWCA Civ 311 and a judgment given by my Lord, Lord Justice Wall. He then said in paragraph 6:

"I am satisfied, after some thought, that the [argument] for making a costs order in this case are made out because I am satisfied that since 5 September the children's mother has been unreasonable in her conduct of the litigation… It has been her unreasonable conduct, which has not been justified to any degree at all, which has led to a very considerable increase in costs which have been incurred which would only have been otherwise incurred in the preparation of an agreed consent application and lodging [at the] court."

Those citations demonstrate plainly that the judge's erroneous conclusion that the mother had not participated in any way was an ingredient (and it seems to me an important ingredient) in the exercise of the broad discretion.

9. What then are the consequences? It seems to me that they are plain enough. First of all I would grant permission; secondly, I would allow the appeal and set aside the order which plainly rests on an erroneous foundation. I have considered whether I would remit for reconsideration by a judge of the Division in possession of all the facts, but that option is deeply unattractive for pretty obvious reasons. I have concluded that I would grasp the nettle and exercise an independent discretion. I have reached the conclusion that an indemnity order against the mother was simply unthinkable. Should any order be made against her, bearing in mind that orders for costs particularly in Children Act cases are extremely uncommon, and bearing in mind that the conduct which was the matter of such complaint by the father's solicitors was conduct that had to be put in the context of the changes of circumstance, the intervening developments in her life?

10. I have reached the conclusion that the proper order, in the exercise of an independent discretion, is no order as to costs in relation to the matters that were before the judge on 5 December. In some respects I would balance what has undoubtedly been an expensive and frustrating experience for the father by indicating that I do not think that there should be any costs in respect of the appeal either. Thus the parents will each bear their own costs and hopefully the issues that remain (the mother has not sought from us any order in relation to the contact provisions) can be approached by the parents with goodwill and sense on both sides. It should surely be possible for them to agree a future plan of contact which relieves the children from over-frequent visits to this jurisdiction, but compensates by ensuring that such visits as are made in half terms and holidays are of longer duration than the brief hours at the weekend that remain, after exhausting journeys between the mother's home somewhere in the Jerez area and the father's home in Surrey.

11. So that is the disposal that I would propose.

Lord Justice Wall:
12. I agree. I add a short judgment of my own not least because the judge below has relied upon a decision of this court in which I gave the judgment of the court in order to justify his decision for indemnity costs. In my view an order for indemnity costs is a wholly exceptional order to make in family proceedings and needs to be very carefully thought through and justified. In the instant case it is of course a matter of the most substantial regret that the communication which the mother undoubtedly sent to the Principal Registry was not placed before the judge before he gave his judgment, but I cannot but notice as my Lord, Lord Justice Thorpe has pointed out, that in the long letter to the father's solicitors dated 2 December, which was before the judge, the fact that she had communicated with the court and had provided a medical certificate was clearly flagged up. In my judgment, whilst it was perfectly appropriate for the father to apply to the court for the orders which were actually made -- and indeed the mother makes no complaint about the orders themselves although she may seek to vary them -- it seems to me that the position which she adopts in the letter of 2 December is not a wholly unreasonable one. Therefore for the judge to condemn her out of hand unreasonable conduct when the material was available for him to appreciate that she had communicated with the court seems to me unwarranted.

13. This leaves the very difficult decision as to what we should do. I am conscious of the fact that we have lifted only one particular corner of this case and I am equally conscious of the fact that we are dealing with young children who need to maintain a proper relationship with their father whilst living in a different jurisdiction. I very much hope that this excursion has not caused too much damage to the parties' relationship as parents. But I am quite satisfied that if the judge had been fully appraised of the position and had he fully taken into account the letter of 2 December when dealing with a sensitive family situation and with a litigant-in-person, he would not have made an order for costs let alone an order for indemnity costs.

14. In my judgment it is therefore open to us to exercise our discretion afresh. I respectfully agree with my Lord that the proper course here is for us, having given permission to appeal, to allow the appeal and to direct that there be no order as to costs before the judge. I also respectfully agree with the order which my Lord proposes in relation to the costs in this court.

Lord Justice Moses:
15. I agree with both judgments.

Orders: Application granted. Appeal allowed. No order as to costs.