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N (A Child) [2009] EWHC 2096 (Fam)

Judgment dealing principally with costs arising from contentious contact and residence litigation between unmarried parents.

The history and background of the litigation is set out in two previous judgments of Munby J: [2009] EWHC 1663 (Fam) and [2009] EWHC 1807 (Fam). In this judgment he was considering the issue of who should pay costs of the proceedings concerning disclosure of information to the GMC for the purposes of a complaint and also the wider costs of the s8 proceedings. Both parties were assisted by McKenzie Friends who had leave to address the court: the guardian’s costs were also an issue. The father was seeking costs for the disclosure issues, on the grounds that he succeeded, and was also claiming for the assistance of his McKenzie Friend at £140 an hour. The mother was, among other things, seeking her own costs for the s8 proceedings in view of the father’s unreasonable conduct, who had made 30 applications during the litigation though he disputed that these were unreasonable.

In this judgment Munby J considers the costs regime and the related case law. He finds that although the father’s conduct was close to justifying an order for costs he declines to make the order “because of the likely effect the making of such an order will have on relations between the parents and thus, and crucially, on N” (the child). He also agreed with the father that “a much more discriminating approach to the father’s various applications is required than the ‘all or nothing’ broad-brush approach adopted by the mother” and found that the mother was not entirely blameless as she had made applications of her own. He also concluded that the father's McKenzie Friend

"is entitled to charge, if he can find clients willing to pay his fees, at an hourly rate which can hardly be said to be extravagant when contrasted with the fees one frequently finds being charged to privately paying clients in family cases".


Neutral Citation Number: [2009] EWHC 2096 (Fam)
Case No: FD03P02333
(In Private)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 5-6 August 2009

Before :

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In the Matter of N (A Child)

Between :

A (Applicant)

- and - 

(1) G; (2) N (by his guardian, CP) (Respondents)

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Dr Michael Pelling for the Applicant (father) (pursuant to leave of the court granted under section 27(2) of the Courts and Legal Services Act 1990)
Mr David Holden for the First Respondent (mother) (pursuant to leave of the court granted under section 27(2) of the Courts and Legal Services Act 1990)
Ms Shelagh Farror (instructed by Goodman Ray) [on 5 August 2009 Ms Gwen Williams of Goodman Ray] for the Second Respondent (child)

Hearing dates: 5-6 May 2009, 5 August 2009
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Mr Justice Munby :
1. I handed down judgment in relation to what I will call the disclosure issue on 8 July 2009: Re N (A Child), A v G [2009] EWHC 1663 (Fam). I handed down judgment in relation to what I will call the section 8 issues on 17 July 2009: Re N (A Child), A v G [2009] EWHC 1807 (Fam). I do not repeat or even attempt to summarise those judgments. I take them as read. Anyone who may hereafter need to consider this judgment should first read them.

2. At my invitation Dr Pelling has helpfully provided drafts of two orders to give effect to those two judgments. The first is in the following terms:

“AND UPON the Applicant’s Request being superseded by the coming into force on 27 April 2009 of Part XI of the Family Proceedings Rules 1991 [specially Rules 11.2(1)(c) & 11.4(1)(c)] but the 1st and 2nd Respondents applying for restrictions on the Applicant’s right to disclose case documents, pursuant to Rule 11.2(1)(c)

AND UPON the Parties consenting to the Court deciding the issue on the basis of the written submissions of the Parties without the necessity of an oral hearing, and the Court subsequently reading: (1) Counsel for the Guardian’s Submission dated 19 May 2009; (2) the 1st Respondent’s Submission dated 26 May 2009; and (3) Dr Pelling’s Submission for the Applicant dated 5 June 2009

1 There be No Order on the Applicant Father’s Request for Leave to Disclose.

2 The 1st and 2nd Respondents’ applications for restrictions on the Applicant’s intended disclosure of documents to the General Medical Council be dismissed.

3 The Applicant … be released forthwith from his Undertaking given on 6 May 2009 not to disclose, or cause to be disclosed by any other person, to the General Medical Council any of the court documents or material which were the subject of his Request for Leave to Disclose.”

3. The second reads as follows:

1 The Applicant’s Applications by Request dated 2 October 2008 for Amendment and Declaration as to legal status of the Consent Order herein dated 29 July 2008, be dismissed.

2 The Applicant’s Applications by Form C2 issued 24 April 2009 (which included and superseded applications of substance not dealt with elsewhere contained in his List of Orders Sought dated 16 January 2009), excluding Applications relating to Disclosure which are dealt with by a separate Order herein dated 5 August 2009, and excluding Applications dealt with by the Consent Order herein dated 8 July 2009, be all dismissed, save that there be No Order on Items 5 and 8 in Section 2 of the Form C2.

3 The Respondent Mother’s 6 substantive Applications (excluding for an order under s.91(14) Children Act 1989) contained in her List of Orders Sought dated 19 January 2009 and further substantive Applications contained in her Position Statement and Skeleton Argument both dated 30 April 2009 (excluding for an order under s.91(14) Children Act 1989), be all dismissed.”

4. I do not understand anyone to object to the drafting of these orders, which seem to me properly to give effect to my two judgments. 

5. I have now to deal with (1) the question of costs, (2) the applications by the mother and the guardian for an order pursuant to section 91(14) of the Children Act 1989 and (3) the question of leave to appeal.

6. First, however, I need to describe events since I gave those two judgments.

Events since judgment  
7. The judgment in relation to the disclosure issue was handed down on 8 July 2009. The following day I received from Dr Pelling a communication indicating that the father was seeking an order for costs in his favour in relation to the disclosure issue in the sum of £1,260, to be paid as to 90% by the guardian and as to 10% by the mother. The following day (10 July 2009) the mother invited me to give directions for submissions in relation to costs and indicated that her stance in relation to seeking permission to appeal in respect of the disclosure issue might be affected by the father’s response to my judgment (not yet given) in relation to the section 8 issues.

8. The judgment in relation to the section 8 issues was sent to the parties on 17 July 2009. Later the same day I sent the following message to the parties:

“In relation to both judgments I propose, subject to any suggestions to the contrary, to deal with all costs issues on the basis of brief written submissions (no more than 4 sides of A4).

In relation to the judgment of 8 July 2009, the father has already stated his position. May I suggest that the mother and the guardian both respond with their submissions by no later than Wednesday 22 July and that Dr Pelling replies by no later than Monday 27 July. In the meantime, would Dr Pelling please supply us with a copy of his invoice / account to the father for the fees claimed.

In relation to the judgment of 17 July 2009, it would assist if everyone could indicate by 12 noon on Wednesday 22 July (without necessarily giving any detailed reasons at that stage) what, if any, order(s) for costs they are seeking.

So that all questions of permission to appeal can be considered together, I propose to extend the mother’s time for seeking permission to appeal against the judgment of 8 July until 31 July 2009.”

9. Dr Pelling responded on 20 July 2009, indicating, in relation to the judgment on the section 8 issues, that the father would be seeking an order that there be ‘no order for costs’ and that he would be seeking to appeal “at least some parts” of my decision, adding that they needed time to consider this and take further advice. He drew my attention to the procedural difficulties arising out of CPR 52.3(2) and 52.4(2) and referred me to the notes in the 2007 Green Book to CPR 52.4. He continued:

“So I would respectfully ask that you fix a very short hearing on or around 31 July 2009 early AM to hand down both Judgments in final approved form in open court, including your decision on costs in both cases. Both Orders could be finalised and dated for the same date. I would wish to attend on behalf of [the father] to ask for Leave to Appeal and to collect printed copies of the Judgments; [the father] would not object to others not attending, or requesting Leave to Appeal in writing (if copied to [him] and myself), but on the basis that any request for Leave to Appeal would be adjudicated upon at the hearing. [The mother] can similarly make any request in writing about the continuation of [the father’s] Undertaking, to be adjudicated at the hearing. So nobody need incur costs of attendance if they did not wish to. An advantage of proceeding in this way is that all parties would then have 21 days from 31 July (or around then) to go to the Court of Appeal on any matter they wished to appeal. This would give adequate time to all parties and their advocates in what after all is now the summer holidays and it isn’t only [the father] and [the mother] who have children to look after.”

10. The mother responded the next day (21 July 2009) indicating that she was seeking an order that the father pay the costs. She invited me to give directions in relation to her application for a section 91(14) order.

11. The guardian’s solicitor responded the following day (22 July 2009):

“The Guardian has carefully considered the judgment and the comments made about the father’s approach to the litigation. Despite the unreasonableness of much of this approach, the Guardian has instructed that she will not pursue an order for costs so as to limit the likelihood of further litigation.”

12. The guardian’s submissions in response to the father’s application for the costs in relation to the disclosure issue followed on 24 July 2009. Dr Pelling’s submissions in reply followed on 26 July 2009.

13. On 27 July 2009 my clerk sent the following message to the parties:

In the light of the parties’ stated positions, and on the footing that all parties are seemingly agreed that all questions of costs should be dealt with on the basis of brief written submissions (no more than 4 sides of A4) … the judge suggests that the remaining arguments in relation to costs should be dealt with as follows:

(a) [The mother] is to set out no later than Thursday 30 July 2009 her submissions in support of her case that [the father] should pay her costs in relation to both judgments; and

(b) [The father] is to set out his submissions in response to (a) no later than Monday 3 August. 

The judge will then give his decision and reasons in relation to costs in a further judgment to be handed down at a very short hearing on, he suggests, Wednesday 5 August 2009.

Permission to appeal
The judge directs that, if any party wishes to seek permission to appeal against any of the matters dealt with in either judgment, they are by Monday 3 August 2009 to serve on the other parties, and at the same time copy to the judge by email, a brief skeleton or written submissions (no more than 4 sides of A4) identifying precisely the issues on which and summarising briefly the grounds on which permission is being sought. Anyone who wishes to amplify these arguments orally can do so briefly at the hearing on Wednesday 5 August 2009.

Hearing on Wednesday 5 August 2009
The directions set out above are intended by the judge to ensure that (1) all submission in relation to costs are dealt with before this hearing, (2) the only issues to be dealt with at the hearing are in relation to permission to appeal, and (3) only those who wish to need attend that hearing (any party content to deal with questions of permission to appeal on the basis of written submissions, without attending at the hearing, is free to do so, provided that those submission have been circulated to all concerned by Monday 3 August 2009). The judge wishes to emphasise that all applications for permission to appeal will be adjudicated upon at the hearing on Wednesday 5 August 2009.

Extension of time for permission
In order to overcome the technical problems identified by Dr Pelling, the judge has today made an order (a) further extending [the mother’s] time for applying for permission to appeal in relation to the judgment of 8 July 2009 and (b) extending both [the mother’s] and [the father’s] time for applying for permission to appeal in relation to the judgment of 17 July 2009, in each case until 4pm on 26 August 2009.

The judge’s intention is that the orders in both matters will be dated 5 August 2009.”

14. The mother and Dr Pelling responded the same day agreeing in essence with what I had proposed. The guardian responded the next day (28 July 2009) indicating that she was not seeking permission to appeal but inviting me to give directions in relation to her application for a section 91(14) order.

15. Accordingly on 28 July 2009 I made an order in the following terms:

(1)  Time for the 1st Respondent to file an Appellant’s Notice in the Court of Appeal in relation to the Decision of 8 July 2009 on Disclosure of documents to the GMC is extended to 4pm on 26 August 2009;
(2)  Time for the Applicant and 1st Respondent to file an Appellant’s Notice in the Court of Appeal in relation to the Decision of 17 July 2009 on matters relating to the Consent Order of 29 July 2008 and further applications (excluding re Disclosure) of the Parties is extended to 4pm on 26 August 2009.”

16. On 29 July 2009 Dr Pelling gave notice of his intention to apply on behalf of the father at the hearing on 5 August 2009 for leave to appeal against paragraphs 1 and 2 of the draft order as set out in paragraph 3 above. The next part of Dr Pelling’s document is so extraordinary that I should set it out in full:

“After consultation with [the father] and on his instruction, and notwithstanding Mr Justice Munby’s direction, I decline to give grounds or reasons as to why the Leave is being sought. This is because it is a wasteful exercise in time and costs, there being no expectation that Leave will be granted on any issue and because experience shows that if you set out your detailed reasons for asking Leave – effectively disclosing your intended grounds of appeal – then judges use that as an opportunity in Form N460 to embellish and add to their Judgments and to influence the Court of Appeal against the appellant. It is for the Court of Appeal to determine appeals and applications thereto for Leave to Appeal and in my submission the introduction of Form N460 was wrong because it allows the Judge under appeal to be effectively heard in the Court of Appeal via his response to a leave application in the lower court. In practice some judges use this opportunity to try and scupper the appeal if they have knowledge of the appellant’s intended grounds to be put before the Court of Appeal. [The father] will therefore reserve his grounds of appeal and reasons for asking Leave to Appeal to the Court of Appeal.

In any event the Judge in the lower court has no power to compel an appellant to disclose his reasons for asking for Leave to Appeal and cannot deny the appellant’s statutory right (indeed duty) to simply ask for Leave to Appeal. Of course, the appellant should identify the order or part or parts of an order against which he is asking for Leave, but beyond that the Judge cannot go.”

17. The mother’s response to this was to accuse Dr Pelling of flouting the rules and rewriting the CPR. She said: “I always understood that the appropriate course of action is to apply to the Judge at first instance for permission to appeal. The reasons provided by Dr Pelling cannot be right”. Dr Pelling’s response the same day (29 July 2009) was as follows:

“As to Leave to Appeal I suggest [she] looks at what the CPR Rules actually say and at what I said. I am asking for Leave to Appeal from the Judge at first instance; I am not giving any reasons; that is in compliance with the CPR.”

18. On 31 July 2009 the mother provided her submissions in relation to costs. She failed to provide her skeleton or submissions in relation to leave to appeal as required by 3 August 2009; apparently Mr Holden was ill. They arrived, late, on 4 August 2009.

19. On 2 August 2009 Dr Pelling provided his submissions in response to the mother’s submissions in relation to costs. In defiance of the direction I had given that such submissions should be confined to 4 sides of A4, the document submitted by Dr Pelling ran to 10 pages. He “sincerely apologise[d]” and claimed that it had “proved simply impossible to adequately reply to the [mother’s] submission in … 4 pages”. Be that as it may, Dr Pelling seems to have thought it useful to take up time in this document, for example, in explaining, with autobiographical details, why he differed from the views I had expressed in paragraph [183] in relation to testamentary guardians and, another example, in opining that:

“It is all too easy for establishments to defend themselves by punitive action against the person who disagrees, especially when largely done in secret. Sometimes the Family Division reminds one of Soviet Russia, when political dissidents were deemed mad and had to be locked away in asylums and drugged into submission.”

20. It is correctly common ground that as these applications arose within family proceedings the general rule that costs follow the event does not apply, for FPR rule 10.27(1)(b) disapplies CPR 44.3(2). This reflects the principle which had previously grown up, where the general practice had been to make no order as to costs in children’s cases: see Gojkovic v Gojkovic (No 2) [1991] 2 FLR 233, London Borough of Sutton v Davis (Costs) (No 2) [1994] 2 FLR 569 and Keller v Keller and Legal Aid Board [1995] 1 FLR 259.

21. But that principle had always been subject to exceptions, importantly for present purposes where a party has behaved unreasonably in relation to the litigation: see R v R (Costs: Child Case) [1997] 2 FLR 95 and Re G (Costs: Child Case) [1999] 2 FLR 250.

22. Both the father and the mother have appeared as litigants in person but with the assistance of McKenzie friends (Dr Pelling and Mr Holden) to each of whom I granted leave to address me pursuant to section 27(2) of the Courts and Legal Services Act. As Dr Pelling points out, CPR 48.6(2)(3) entitles a litigant in person to claim his costs at the full rate for “disbursements” and “payments reasonably made by him for legal services relating to the conduct of the proceedings.”

Costs – the father’s stance
23. The father seeks an order for the costs of the disclosure issue on the simple basis that he succeeded. He seeks a summary assessment of his costs in the sum of £1,260, that being the amount of Dr Pelling’s fee (the word used by Dr Pelling in his communication of 9 July 2009). As I have already mentioned, Dr Pelling seeks an apportionment of this amount as to 90% to the guardian and 10% to the mother, as the majority of the work undertaken was, he says, responding to the submissions of the guardian’s counsel.

24. Dr Pelling points out that on 5 May 2009 he was granted a right of audience under section 27(2)(c) of the 1990 Act and that the order I made on 6 May 2009 directed that “Dr Michael Pelling do file and serve on behalf of the Father ... his written submissions in reply.” As he also points out, section 27(10) of the 1990 Act expressly removes prohibitions in the Solicitors Act 1974 on unqualified persons doing certain categories of legal work for fees in regard to “any act done in the exercise of a right of audience.” Accordingly, the father claims as a disbursement, alternatively as a payment reasonably made by him for legal services relating to the conduct of the proceedings, Dr Pelling’s full fee on the disclosure issue for acting as advocate on 5-6 May 2009 and for drafting the written submissions I had ordered. The latter, Dr Pelling says, required careful and in-depth consideration of the submissions and authorities of the guardian’s counsel and the mother, and of the effect of the completely new legislation comprised in FPR Part XI. It was also, he says, necessary to advise the father and assist in drafting correspondence with the GMC to obtain information about their complaint procedures.

25. Dr Pelling’s invoice (his word) is headed ‘ALIP (Assistance to Litigants in Person)’ and gives Dr Pelling’s name and address. Dated 9 July 2009 and addressed to the father it is described as being “For Advocacy Services Provided in Connection with High Court case FD03P02333 re Disclosure of Documents to GMC for Complaint Purposes.” It identifies a rate of £140 per hour and claims for one hour’s “Preparation & advocacy at Court on 5-6 May”, one hour’s work on 5 June 2009 “Researching GMC Complaints procedure, advising client and assisting in drafting of correspondence with GMC” and seven hours’ work also on 5 June 2009 “Considering submission with authorities of Guardian’s counsel, and Respondent’s submission, and the new Part XI FPR 1991, and drafting Reply thereto.” The total, being nine hours at £140 per hour, thus comes to £1,260. (Dr Pelling is not registered for VAT, so there is no claim for VAT.)

Costs – the guardian’s response
26. In answer to the father’s claim for the costs of the disclosure issue (the only matter which affects her) Ms Farror on behalf of the guardian essentially takes three points:

i) First, she submits that the guardian’s conduct on behalf of the child in contesting the issue of disclosure was wholly reasonable and justified having regard to (a) the possible effect on the welfare of the child if disclosure was ordered and the reaction of the mother were adversely to affect the child and (b) the fact that the subject of the application involved completely new and important legislation as to which there was as yet no authority, or judicial guidance or interpretation.

ii) Secondly, she submits that the amount claimed is excessive in all the circumstances of the case. Observing that under CPR 48.6(4)(b) the amount that can be claimed by a litigant in person for doing work is set at £9.25 per hour, she submits that whilst Dr Pelling is not the litigant in person, neither is he legally qualified as an advocate. So, it is said, the amount claimed is not proportionate.

iii) Thirdly, she submits that it would be inequitable for the guardian to bear 90% of any costs awarded. She points out that it was at the direction of the court that the guardian’s counsel filed submissions first, on the basis that it would assist the court and the mother, as the mother was not legally represented. Had the mother been legally represented the guardian would have been in the position of supporting the mother’s case, and the submissions of counsel on the guardian’s behalf would consequently have been shorter and less time consuming for the father to reply to.

27. All in all, says Ms Farror, taking into account all these matters it would not be reasonable, just or equitable for the court to make any order for costs against the guardian, let alone an order in the amount or the proportion claimed.

28. The guardian also took a point founded on section 11 of the Access to Justice Act 1990. This prompted a detailed response by Dr Pelling but there is, in the circumstances, no need for me to pursue the point any further.

Costs – the mother’s stance
29. So far as concerns the father’s application for the costs of the disclosure issue, the mother’s stance is that it was not unreasonable for her to oppose the application.  

30. In relation to the section 8 issues, as I have said, the mother seeks an order that the father pay her costs. She claims a total of £6,415.50 calculated as follows (in her written submission she claims £6,488 but this would seem to be an arithmetical error):

i) Loss of wages: four days at £38.25 per day – £153.

ii) Time spent on preparing case: 650 hours at £9.25 per hour – £6,102.50 (in her written submission she claims £6,175 but this would seem to be an arithmetical error). In justification of this figure, she says that as the father was clearly attempting to re-open the case, effectively challenging the validity of the consent order, all the earlier documentation pre the consent order had to be revisited. The amount of time she spent, she says, can only be assessed, as she did not keep time sheets, but she asserts that 14 hours a week on average would be “very conservative”, so given the time which has elapsed since the father first began to have second thoughts, the total number of hours spent would be in excess of 650.

iii) Cost of car-parking while attending court: 4 days at £40 per day – £160.

31. Fundamentally, the mother’s case is that the father should pay her costs, consistently with the authorities to which I have already referred, because of the unreasonable way in which he has conducted the litigation since I made the consent order in July 2008. Furthermore, and referring to the point made by Wilson J in London Borough of Sutton v Davis (Costs) (No 2) [1994] 2 FLR 569 at pages 570-571, that the effect of an adverse costs order may be to exacerbate rather than calm down the tensions between the parties, she says that in this particular case it is unlikely that the existing tensions could be further exacerbated.

32. The mother seeks to derive assistance from what she says is the “uncanny resemblance” between the present case and R v R (Costs: Child Case) [1997] 2 FLR 95, where the Court of Appeal held that His Honour Judge Goldstein was entitled to find that the father there had acted unreasonably and should therefore pay the costs. Thus she compares Judge Goldstein’s findings, as set out at page 97, with my findings at paragraphs [83], [182]-[184].

33. More generally, the mother asserts that “with regard to unreasonableness, the list is endless”. She draws attention in particular to paragraphs [35], [51], [56]-[57], [82], [149], [173]-[175], [181]-[184], [213] and [216] of my judgment and quotes paragraph [175] in full:

“Whatever he may have brought himself to believe, and whatever advice he may have received or be receiving, the father’s behaviour is, if truth be told – and the time has now come when, in the interests of his son, a judge must speak plainly – an abdication of his duties as a father.”

34. She says it is apparent that before the ink was dry on the consent order, the father wanted to resile from his agreement. He has, she says, spent an enormous amount of wasted energy in pursuing his goal, without caring about the collateral damage he was causing, in particular to his son. Furthermore, not only has he abdicated his responsibilities as a father, by his actions he has diminished the quality time that N could spend with his mother, causing what she calls “untold torment”. She adds: “Not only did N not have a father; the father did not want N to have a mother.”

35. She says that it is also clear from his conduct that the father will not stop “and, as he does not have to pay for losing, he gets away with it relatively cheaply.” She, for her part, had solicitors in the past but could no longer afford them. She has, she says, lost money and time which could have been better spent on her son. The costs became astronomical because the father would send volumes of what she calls “useless material” which had to be read by her solicitors and she had to be pay for this.

36. In summary, she says, the father’s 30 applications failed resoundingly and he should be ordered to pay, as she puts it, for the horrendous amount of time wasted. Her own applications, she says, were never pursued. She had always stated that she wanted the litigation to stop, but unless she totally capitulated the father would not stop. Little or no time, she says, was spent on her applications. 

Costs – the father’s reply
37. The father’s reply is two-fold: first, his reply to the guardian’s response to his application that she pay 90% of the costs in relation to the disclosure issue; second, his response to the mother’s application that he pay the costs in relation to the section 8 issues. It is convenient to take them in turn.

38. Dr Pelling’s response to Ms Farror’s submissions is to point out, correctly, that in relation to the disclosure issue the child’s welfare is not the paramount consideration. On the contrary, he says, it was hardly likely to be affected. So, he submits, there is no reason why costs should not in fact follow the event. His response to Ms Farror’s three points as I have summarised them above can be summarised as follows:

i) First, he submits that it was patently obvious (as, he says, the judgment makes clear) that the welfare of the child was never going to be affected and the ‘reaction of the mother’ argument was not supported by any medical evidence. It was in truth, he says, “a pathetic argument.” Moreover, he submits, the novelty of the point is not something that has ever been accepted as a valid reason not to pay the successful party’s costs. “Those who want to fight to make a point of law must still be prepared to pay the costs if they lose.”

ii) Secondly, he disputes that the amount claimed is excessive. One has, as he points out, to distinguish, as Parliament has done, between work done by the litigant in person himself (where the pecuniary loss factor, the ?rds rule and the £9.25 per hour rate all apply as appropriate) and disbursements and payments reasonably made for legal services relating to the conduct of the proceedings (where the full cost is claimable). Dr Pelling accepts that he has no formal legal qualifications but says so what? He submits that, unless the court is to indulge in discriminatory practices without any rational foundation, why should not the principle of equal pay for equal work apply? One should rather, he says, examine the merit of the work done, not the paper qualifications. He accepts of course that an advocate’s expertise and experience is reasonably taken to be reflected in the merit of his work (QCs are paid more than juniors), which is why, as he puts it, his rate is somewhat lower than Ms Farror’s. Likewise he accepts that it is of course open to the court to tax his bill down if the rate is considered too high, but says it should be on proper grounds.

iii) As to Ms Farror’s third point, he observes pithily that one has to take the facts as they were, not as they might have been. 

39. Taking everything into account, he submits that it would be reasonable, just and equitable for the court to make an order for costs against the guardian (the form of the order, he says, may more correctly be one against the child with a proviso that the liability be met by the guardian) in the reasonable amount claimed and in the proportion sought.

40. Dr Pelling adds that the father’s submission in reply on costs has itself occasioned considerably more work than originally expected, so if successful the father asks also for payment by the guardian at the same rate of the additional 1½ hours work undertaken by Dr Pelling.

41. Dr Pelling’s response to the mother’s application, although lengthy, can I think fairly be boiled down to the following essential propositions:

i) First, and fundamentally, he disputes that the father has been guilty of the kind of unreasonable conduct in the course of the litigation which alone is relied upon as justifying an order for costs against him. In support of this contention Dr Pelling analyses in turn each of the father’s applications with a view to demonstrating that each of them was in fact reasonable and that the mother’s characterisation of the father’s litigation conduct is unwarranted. He emphasises that the father was not acting mischievously or selfishly, being motivated only, he says, by his genuine concerns for his son’s welfare. And he stresses what he says were, from the father’s perspective, two key provisions in the consent order: one was the review to take place in the following year; the other, without which, he says, the father would never have consented to it, was the curb on the mother moving to live by herself with N away from her own parents. He submits that it can hardly be said to be unreasonable for the father to object to that key safeguard being removed without a proper investigation.

ii) Secondly, he makes the point that in any event it cannot be said that the father was acting unreasonably in relation to either (a) the matters which in the event were dealt with by consent or (b) the matters where I made no order (rather than an order dismissing the application) or (c) the matters where the father’s application, even though in the event unsuccessful, was responsive to the mother’s inappropriate actions or (d) the matters which arose out of a shared experience of difficulties in making the consent order work or (e) the matters where the guardian herself recognised that some adjustments to the consent order might be appropriate. So the mother’s broad brush approach cannot, he says, be justified. Each of the various applications must be examined carefully in order to determine which were, and which were not, unreasonable.

iii) Thirdly, he disputes that the mother’s applications were not pursued and says that, since my approach in relation to them mirrored my approach in relation to the corresponding applications made by the father, it hardly lies in the mother’s mouth to accuse the father of being unreasonable:

“If the father is guilty of unreasonable conduct of litigation then so equally is the mother. That should reflect in any costs order. Of course, [the father’s] position is that neither were unreasonable.”

iv) Fourthly, he disputes that there was any need for the mother to undertake all the work she says she did in respect of the earlier documentation.

42. Dr Pelling makes a large number of other points which I decline to rehearse, though emphasising that in coming to my decision I have had them all very much in mind.

43. Dr Pelling’s concluding submissions merit citation at some length:

“This is a case where the proper order for costs is the usual one of ‘No Order’. The guardian herself has wisely and reasonably taken that approach and decided not to seek costs. If however the court disagrees, then unless it were to take the extreme view that every single application of [the father] (and consistently of [the mother]) constituted unreasonable conduct of litigation of such gravity as to resound in costs, the court would … have to embark on an analysis of which ones were so unreasonable and which were not, and [the mother] would have to provide some evidence or reasonable calculation of time spent on the unreasonable ones and not just pluck vague guesstimates out of the air. In costs the brush may be broad, but there are some brushes which are just too broad. Further, bearing in mind that Mr Holden has told me he is not charging [the mother] fees, but has clearly had a very major input in the conduct of [her] case and advocacy … it would be necessary for [the mother] to convince the court that time she claims for was really her own and not Mr Holden’s.

Further, given the amount that [the mother] could reasonably claim, it seems to me that the whole matter is becoming quite disproportionate, both in terms of time spent by the advocates in making these costs submissions and in terms of judicial time in dealing with them and the consequential further analysis that would probably be necessary in distinguishing the reasonable from the unreasonable.

In all the circumstances therefore I respectfully suggest it would be practically and financially better, and legally correct, to call it a day and make No Order on the costs of the s. 8 review and related proceedings.”

Costs – discussion
44. It is I think convenient to consider first the costs of the section 8 issues.

45. There is, in my judgment, some force in many of the points Dr Pelling makes, in particular his contention that a much more discriminating approach to the father’s various applications is required than the ‘all or nothing’ broad-brush approach adopted by the mother. And it is a fact that, even if only responsively to the father’s many applications, the mother did make and pursue – unsuccessfully – some applications of her own. Furthermore I do take leave to wonder whether the mother is really justified in saying that she spent, or that if she spent she reasonably spent, as many as 650 hours in preparing her case.

46. As against that the father’s approach, in my judgment, was unreasonable: unreasonable both in parts, though not, I emphasise, in every respect, and also, given the sheer number and reach of his applications – no fewer than 30 applications arising out of what was after all a consent order – unreasonable in its scale and overall effect.

47. That said, the fact that a parent has litigated in an unreasonable fashion may open the door to the making of an adverse costs order; but it does not of itself necessitate the making of such an order. There is, at the end of the day, a broad discretion to be exercised having regard to all the circumstances of the case. And a judge must be careful not to fall into the trap of simply assuming that because there has been unreasonable behaviour in the conduct of the litigation an order is therefore to be made without more ado. Careful attention must be paid to all the circumstances of the case and to the factors which, on the authorities I have referred to, indicate that normally it is inappropriate to make such an order – factors which do not simply disappear or cease to have weight merely because the litigation has been conducted unreasonably.

48. I have to say plainly that the father’s litigation conduct has, in my assessment, come very close indeed to justifying the order the mother seeks. But I am persuaded, on balance, that it would not be fair, just or reasonable to make that order, not least – and this is an important factor in my thinking – because of the likely effect the making of such an order will have on relations between the parents and thus, and crucially, on N.

49. There is, if I may say so, much wisdom in what Wilson J said in London Borough of Sutton v Davis (Costs) (No 2) [1994] 2 FLR 569 at pages 570-571:

“Where the debate surrounds the future of a child, the proceedings are partly inquisitorial and the aspiration is that in their outcome the child is the winner and indeed the only winner. The court does not wish the spectre of an order for costs to discourage those with a proper interest in the child from participating in the debate. Nor does it wish to reduce the chance of their co-operation around the future life of the child by casting one as the successful party entitled to his costs and another as the unsuccessful party obliged to pay them.”

50. Or, as Hale J put the point in R v R (Costs: Child Case) [1997] 2 FLR 95 at page 97, where she referred to:

“the possibility that in effect a costs order will add insult to the injury of having lost in the debate as to what is to happen to the child in the future; it is likely therefore to exacerbate rather than to calm down the existing tensions; and this will not be in the best interests of the child.”

51. I do not take so bleak a view as the mother’s when she suggests that matters are already so bad that they can get no worse. Moreover, it needs to be remembered that the mother is not blameless in all this: see, in particular, what I said in Re N (A Child), A v G [2009] EWHC 1807 (Fam) at paras [46] and [202]. There is, I fear, a very real risk that were I to make the order the mother seeks she would treat it as a complete vindication of every negative view she has about the father – an outcome that would assist neither the parents nor their son.     

52. For all these reasons I have concluded that notwithstanding the way in which the father has chosen to conduct this litigation, the proper order to make is that there should be ‘no order’ in relation to the costs of the section 8 issues. I make it clear, however, that if there is any further continuation of the litigation by the father making any further unsuccessful applications, a very different order may very well have to be made.

53. I turn to the costs of the disclosure issue, where I accept that somewhat different considerations apply.

54. I make clear that, despite Ms Farror’s submission to the contrary, I take no issue in the particular circumstances of this somewhat unusual case with the quantum of the costs being claimed, whether in respect of the quantum of Dr Pelling’s hourly charging rate or in respect of the number of hours he worked. Dr Pelling may be unqualified but he is plainly highly knowledgeable and experienced in such matters and he is entitled to charge, if he can find clients willing to pay his fees, at an hourly rate which can hardly be said to be extravagant when contrasted with the fees one frequently finds being charged to privately paying clients in family cases.

55. The real question, to my mind, has nothing to do with the quantum of the costs being claimed, but rather with whether, in all the circumstances, it is appropriate to make any order at all.

56. In my judgment it is not. I appreciate that, from one perspective, the child is less directly implicated in the disclosure issue than in the section 8 issues, and that the dispute here is not so much between the father and the mother as between the father and the guardian, but one cannot ignore the fact that but for the happenstance of litigation (which led to the disclosure issue being ‘hived off’ as a separate issue at the hearing on 5 May 2009) the disclosure issue would have been dealt with as part of the overall litigation. Nor can one ignore the fact that the guardian participated in this issue in accordance with directions that I had given.

57. In my judgment, the appropriate order to make in all the circumstances is that there be ‘no order’ as to these costs.

Section 91(14)
58. The mother and the guardian invite me to give directions. The father submits that their applications should be adjourned to a date to be fixed after the conclusion of all proceedings in the Court of Appeal.

59. I do not agree. Irrespective of the merits or otherwise of any proposed appeal, whether by the father or by the mother, there is no justification for any further delay in bringing the proceedings at first instance to a conclusion. On the contrary, there is every reason – not least the compelling demands of N’s welfare – not to permit any further delay.

60. The applications for a section 91(14) order will accordingly be listed for hearing on the first available date on or after 5 October 2009. I would propose that the mother and the guardian file skeleton arguments, setting out precisely what orders they are seeking and the grounds for their applications, together with details of the authorities upon which they rely, and that the father then files a skeleton argument in response. I invite the parties to formulate an appropriate timetable and draft any necessary directions.

Leave to appeal
61. The directions I gave on 27 July 2009 contemplated that although the parties should serve skeleton arguments or written submissions beforehand, they would have an opportunity at the hearing on 5 August 2009 to “amplify these arguments orally”, albeit “briefly”. I shall accordingly defer the final part of this judgment until I have heard those further submissions.

62. Thus far this judgment is in the form in which it was handed down at the beginning of the hearing on 5 August 2009.

63. At the hearing Dr Pelling confirmed the father’s stance as set out in the document sent to me on 29 July 2009, save that the father now wished to appeal also against my refusal to give him his costs of the disclosure issue. Mr Holden for his part addressed me briefly in support of the mother’s application for leave to appeal in relation to the disclosure issue. Dr Pelling indicated that the father opposed the mother’s application. I indicated that I did not need to hear any further from him since I was not going to accede to the mother’s application. I announced that I was going to refuse both applications for leave for reasons which I would put in writing. This I now do.

Leave to appeal – the father’s application
64. So far as concerns the father’s application for leave to appeal I can be brief.

65. I have already set out the document that Dr Pelling sent me on 29 July 2009. In relation to this document I make only the following observations.

66. First, this is yet another example of the father, aided and abetted by Dr Pelling, choosing to defy decisions of or directions given by the court – a matter on which I have previously had occasion to comment: see, for example, Re N (A Child), A v G [2009] EWHC 1807 (Fam) at paras [57]-[58], [246]-[249], and, for the latest example, paragraph [19] above.

67. Secondly, this is yet another example of the father, through the mouth of Dr Pelling, expressing his disdain, indeed his contempt, for the judicial system and for the judges: see, for previous examples, Re N (Payments for benefit of Child) [2009] EWHC 11 (Fam), [2009] 1 FLR 1442, at paras [63], [66], [86], [112], [114], Re N (A Child), A v G [2009] EWHC 1807 (Fam) at para [240] and, for the latest example, paragraph [19] above. I do not wish to be misunderstood. I stand by every word I said in Harris v Harris, Attorney-General v Harris [2001] 2 FLR 895 at para [372]:

“[I]t is certainly not a contempt of court to engage in reasoned criticism of the judicial system or of the judiciary, whether that criticism be of an individual judge or of the judiciary as a whole, and even if the criticism is expressed in vigorous, trenchant or outspoken terms. For that which is lawful if expressed in the temperate or scholarly language of a legal periodical or the broadsheet press does not become unlawful simply because expressed in the more robust, colourful or intemperate language of the tabloid press or even in language which is crude, insulting and vulgar. Judges, after all, are expected to be, and I have no doubt are, men and women of fortitude, able to thrive in a hardy climate, and the vehemence of the language used cannot of itself measure the power to punish for contempt. On the contrary, so long as it does not undermine what in Art 10(2) is referred to as ‘the authority and impartiality of the judiciary’, such criticism is healthy. There is, I think, much to be said for the view that the judges must be kept mindful of their limitations and of their ultimate public responsibility by a vigorous stream of criticism expressed with candour however blunt. Moreover, a much more robust view must, in my judgment, be taken today than previously of what ought rightly to be allowed to pass as permissible criticism. Society is more tolerant today of strong or even offensive language. Society has in large part lost its previous habit of deferential respect. Much of what might well, even in the comparatively recent past, have been considered by the judges to be scurrilous abuse of themselves or their brethren has today, as it seems to me, to be recognised as amounting to no more than acceptable if trenchant criticism.”

68. But there is a place for all this, and the court-room is not such a place: cf Harris v Harris at para [366]. And those who choose to use language of the type which, too frequently, the father and Dr Pelling have chosen to use throughout this litigation – not on the spur of the moment or in the heat of forensic battle, but in carefully drafted written documents – misunderstand the proper role of the advocate and abuse the privileges conferred upon them whether as litigant or, in Dr Pelling’s case, as advocate.

69. Thirdly, the contentions put forward by Dr Pelling defy and deny what everyone knows is the everyday practice of the courts. Judges at first instance who are asked to give leave to appeal routinely ask for, and are routinely given, at least in outline, the reasons why it is being said that leave ought to be granted. My direction was carefully drafted and quite limited in what it required: “a brief skeleton or written submissions (no more than 4 sides of A4) identifying precisely the issues on which and summarising briefly the grounds on which permission is being sought.” I vigorously dissent from Dr Pelling’s proposition that my power is limited, as he would have it, to requiring him to identify the parts of the order against which he is asking for leave to appeal. The proposition that “beyond that the Judge cannot go” is not merely absurd; it is disproved by the daily practice of the courts.

70. Finally, the contentions put forward by Dr Pelling simply fly in the face of CPR 52.3(6), which provides that:

“Permission to appeal may be given only where –

(a)  the court considers that the appeal would have a real prospect of success; or

(b)  there is some other compelling reason why the appeal should be heard.”

71. How is a judge to assess whether an appeal would have a real prospect of success if the would-be appellant refuses to tell him what his proposed grounds of appeal are or to tell him why he says the judge has erred in some way which entitles the Court of Appeal to interfere? How is the judge in such a situation to complete that part of Form N460 which requires him to set out the “reasons” for his decision, as the case may be, either to give or to refuse leave to appeal? Dr Pelling’s riposte, as we have seen, is simply to assert that “the introduction of Form N460 was wrong.” He may choose to ignore it. I may not. My duty is to do justice according to law; not to do justice according to what a litigant thinks the law ought to be when in fact it is not.

72. I refuse the father’s application for leave to appeal on two grounds:

i) First, that he has refused, in terms, to identify either the grounds of his proposed appeal or the reasons as to why leave is being sought. That of itself, in my judgment, justifies – indeed almost necessitates – the refusal of his application. All the more so, it might be thought, where, as here, the father is wholly indiscriminate in his application, seeking, as I understand what is being said, to challenge my decision in relation to every single one of his numerous extant applications. 

ii) Secondly, that doing the best I can, despite being deprived of any assistance at all on the point, I do not think that any appeal would have a real prospect of success.

Leave to appeal – the mother’s application
73. I turn to the mother’s application.

74. As set out in her written submissions, and supplemented by Mr Holden’s brief oral submissions, the grounds of her proposed appeal in relation to the disclosure issue can be summarised as follows:

i) First, that my interpretation of rule 11.4(1)(c) was too wide. The mother appreciates, she says, that there should be a loosening of the tight rules governing disclosure of documents, but she does not accept that it should be so wide that a party can send what could be very private documents to anyone by way of a complaint, while the person about whom the documents refer is completely ignorant of the disclosure and impotent to prevent such disclosure before it is too late. The mother points out that if one can complain about anyone concerned with the proceedings, one can therefore complain about the other party – so, purely as a vindictive exercise, one party could complain about the other party and send very private documents, for example, to the child’s school or to an employer. Moreover, she asks rhetorically, ‘How many complaints can a party make?’ Is a disgruntled litigant to be able to complain, as she says the father has done here, about two Cafcass officers, a solicitor, a barrister, a social worker and a psychiatrist, and deploy all the documents in the case in support of each complaint?

ii) Secondly, that rule 11.2(1)(c) does not provide any adequate safeguard unless, as the mother puts it, there are multiple applications by all parties seeking anticipatory orders that there not be any disclosure of documents – for a party will never know whether or not their private documents will be disclosed.

iii) Thirdly, that the safeguards I referred to (for instance in paragraph [50] of my judgment) are not adequate, particularly if the recipient is not a public body and therefore not bound by section 6 of the Human Rights Act 1998. In particular, the mother says, ‘What about the child? What protection is afforded to the child?’

iv) Fourthly, that it is not clear whether the word “necessary” (see paragraphs [65]-[67] of my judgment) imports a subjective or an objective test. As the mother says, clearly the complainant (here the father) would say it is necessary, but ‘Who decides whether or not it is necessary?’

75. Finally, the mother raises the question – which she accepts and which I emphasise was not raised before me – as to whether rule 11.4(1)(c) is Convention-compliant, being incompatible, she suggests, with Article 8 because it no longer requires the careful ‘balancing exercise’ which, she says, was a feature of the previous regime.

76. In his oral submissions Mr Holden added that since this was new legislation, and my judgment the first to grapple with it, that might also be a reason for giving leave to appeal.

77. I refuse the mother leave to appeal, in the first place because I am unpersuaded that any of the mother’s identified grounds of appeal have a real prospect of success:

i) My actual decision was that a complaint to the GMC was within the ambit of rule 11.4(1)(c). I regard the contrary as simply unarguable.

ii) The suggestion that rule 11.4(1)(c) is not Convention-compliant – a point which was not argued before me – is also, in my judgment unarguable: see Re N (A Child), A v G [2009] EWHC 1663 (Fam) at paras [72]-[75].

iii) The remainder of the arguments raised by the mother seem to be more directed to what she asserts are deficiencies in the statutory scheme than to any identified defects in my application of that scheme.

78. Despite the various points raised, including Mr Holden’s argument that this is new legislation, I am not persuaded that this is a case which properly falls within CPR 52.3(6)(b). In any event, in a case such as this it is, I think, for the Court of Appeal rather than the judge at first instance to decide that leave to appeal should be given on this ground. 

Leave to appeal – extension of time
79. In relation to the father’s application for leave to appeal, Dr Pelling seeks a further extension of time from 26 August 2009 until 4 September 2009. The mother indicated at the hearing on 5 August 2009 that she does not oppose this application. I will accordingly extend the father’s time for appealing until 4 September 2009 and extend the mother’s time for appealing likewise.

80. The father does not need any stay of my order in relation to the section 8 issues pending appeal. The mother, on the other hand, does require a stay of that part of the order in relation to the disclosure issue which releases the father from his undertaking, for otherwise her appeal might be rendered nugatory. I propose to stay the relevant part of the order, initially until 4 September 2009 and then (if, but only if, she has by then filed an appellant’s notice) to extend the stay for a further week to give the Court of Appeal an opportunity to decide whether the stay should be extended any further.