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C ( A Child) (Wasted Costs) [2015] EWHC 3259 (Fam)

Hearing in private law children proceedings before Mr Justice Cobb on the mother’s application for a wasted costs order against the father’s solicitors. Held that a wasted costs order was justified and proportionate in this case.

Background facts
The parties had been involved in extensive litigation in England and in the United States of America in respect of their son 'C' (aged 9) who now lived in Florida with the mother (the father remaining in England). Proceedings continued in both jurisdictions until July 2015 when Mr Justice Cobb gave permission to the father to withdraw his application on the basis that there was an existing consent order made and sealed in United States District Court Southern District of Florida (Miami) which the father had recently applied to vary and that the Florida court had, and should continue to have, jurisdiction in relation to C's welfare [2].

The final hearing
Although this effectively brought the English proceedings to an end, a three-day final hearing remained listed. At the outset of the final hearing:

The court directed the father's solicitors (who were considered to probably be more culpable) to show cause as to why they should not be ordered to pay a portion of the mother's costs.

The court received a written statement from a solicitor at the firm (Duncan Lewis). They explained, inter alia, that the father was unable to file his evidence due to the mother's late filing (which in turn was due to funding difficulties) and that they had not notified the mother's solicitors explicitly that the father had made a fresh application to vary the Florida order because they had assumed they were aware of such by their conduct and other correspondence. It was conceded that the Clerk of the Rules had been notified inappropriately late, but this was in part due to the solicitor in the case being on leave at relevant times. The trial bundle was sent – but only on the Friday in advance of the hearing on Monday [6].


 "The effective management of family cases before the courts depends upon strict compliance by parties with court orders: orders are orders (see Re W [2013] EWCA Civ 1177)." [7]. The effective administration of the courts and of justice depends on parties complying with court orders. In this instance a failure to do so lead to time being allocated unnecessarily to the hearing at the expense of other cases that needed urgent consideration. The court reminded itself that it may, at any time make such order as to costs as it thinks just (s51 (1) Senior Courts Act 1981) and a wasted costs order where it is satisfied that there has been "any improper, unreasonable or negligent act or omission on the part of any legal or other representative or any employee of such representative"  (s51 (7)). [10].

Cobb J found that whilst the father's solicitors were a "firm with a distinguished record of representing clients within the family law jurisdiction" [11], their explanation did not satisfactorily account for the identified failures, and contributed to the mother (and the court) being put to additional and avoidable costs for the hearing.  The court found that the mother's solicitors were not without blame and so the father's solicitors were ordered to pay only a portion (25%) of the mother's assessed costs of the hearing.

The judgment serves as a stern reminder to practitioners of the consequences of failing to comply with court orders and failing to assist the court in effective case management.

Summary by Esther Lieu, barrister, 3PB

Neutral Citation Number: [2015] EWHC 3259 (Fam)
Case No: WD13P01408


Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 09/11/2015

Before :


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In the matter of C (a child) (Wasted Costs)

Between :

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M Respondent
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Mr. Mark Love (instructed by Duncan Lewis) for the Applicant (father)
Ms. Hannah Markham (instructed by Jane Kaim Caudle) for the Respondent (mother)

Hearing dates: 6 July 2015
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Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

This judgment was delivered in private.   The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved.   All persons, including representatives of the media, must ensure that this condition is strictly complied with.   Failure to do so will be a contempt of court.

The Honourable Mr. Justice Cobb : 
1. C, now aged 9, was born in England and lived here for the first seven years of his life.  In 2013, his mother married an American and he has subsequently moved to live there.  The father continues to live in England.

2. For approximately one year, legal proceedings continued on both sides of the Atlantic concerning C; this was, for multiple reasons, unsatisfactory.  At a hearing on 6 July 2015, I made an order giving permission to the father to withdraw his applications issued in this court (dated 24 August 2014, 7 October 2014, 5 March 2015).  This order was predicated on the basis that the parties agreed and acknowledged that:

i) that there is an existing substantive consent Order (October 2013) made and sealed in the United States District Court Southern District of Florida (Miami) which defines and regulates the arrangements for contact between C and his father;

ii) the father had recently (3 June 2015) made an application to the United States District Court Southern District of Florida (Miami) for a variation of its order;

iii) the United States District Court Southern District of Florida (Miami) continues to have exclusive jurisdiction in relation to C's welfare;

iv) it was contemplated that any further application relating to C's welfare would be determined in that court.

3. Thus the English proceedings were brought to an end.

4. That agreed position had been presented to the court at the start of what had been listed as a 3-day hearing.  For this hearing:

i) Both parties had failed to comply with case management directions; the father had failed to file his final evidence;

ii) Notification had been given to the Clerk of the Rules only very late in the day that the hearing on 6 July would not be fully effective; it was the mother's solicitors who had first notified the Clerk of the Rules of a possible change (29 June 2015), the father's solicitors confirming the position only on 2 July 2015; 

iii) Until the morning of the hearing, both parties (certainly the father, the mother's position being more equivocal) appeared to contemplate that the English wardship proceedings would continue in one form or another at least for the time being;

iv) The Court had received no trial bundle for the hearing.

5. I regarded both parties to blame, to some extent, for this sorry state of preparation.  However, I viewed the father's solicitor's as potentially more culpable and, on the application of the mother for an order for costs, I made an order in these terms, directed to the father's solicitors, Duncan Lewis:

"Duncan Lewis, solicitors for the father, shall – by 4pm on 20 July 2015 – show cause in writing … why it should not pay a contribution to the mother's costs of this hearing of £1,250 or 25% of the assessed costs of the mother of this hearing – whichever is the lesser sum – given that:

i) It did not appear to have complied with the case management directions for the filing of evidence for this hearing;

ii) It did not appear to have informed the mother's solicitors that the father had made an application in the USA on 3 June 2015 to vary the Order of the United States District Court Southern District of Florida (Miami);

iii) It had not apparently notified the Clerk of the Rules of the changed position of the father, and his decision not to pursue his application for substantive orders in this jurisdiction until 2 July 2015 (i.e. after the mother's solicitors had notified the court of the probable change of circumstances);

iv) It failed to provide the court with a trial bundle; if this had been sent in the DX, proof of the time/date when it was placed in the DX will be required."

6. Pursuant to that direction, I received a signed statement from Simran Gupta, solicitor of Duncan Lewis on 17 July 2015.  I do not propose to rehearse here the full details of that statement, but it is appropriate that I should summarise its key content as follows:

i) It was acknowledged that the father's statement of evidence had not been filed in accordance with the case management order; the explanation was that the mother's statement (to which the father was expecting to reply) had itself not filed in accordance with the directions; the mother's solicitors had explained in inter-partes correspondence that they had been delayed in the preparation of the mother's statement as a result of funding difficulties;

ii) The father's solicitors did not notify the mother's solicitors that the father had made a fresh application to the US Court on 3 June 2015, because (a) it believed that the mother had been served with the proceedings directly, (b) it did not have any of the relevant documentation, and (c) the proceedings were not taking place in this jurisdiction. That said, Mr Gupta had referred to this application (in the US) when in correspondence with the mother's solicitors on 24 June he had sought an adjournment of the 6 July hearing; the mother's solicitors replied to that correspondence on 26 June 2015, acknowledging the information.  In light of the developments in Florida, the father's solicitors had suggested that the hearing on 6 July be reduced to 1 hour; the mother agreed to vacate the hearing and invited the father to withdraw his applications;

iii) It is acknowledged that it was the mother's solicitors who took the initiative to notify the Clerk of the Rules of the changed position of the parties on 29 June 2015; at that time, the mother's solicitors requested that the hearing be 'vacated' (not in the end an agreed position, as the father wished for 1 hour of court time to consider an interim contact issue, notwithstanding that the US courts are seised of this issue).  On 2 July 2015 the father's solicitors confirmed to the Clerk of the Rules than only one hour would be required on 6 July; at that point, the father was not intending to withdraw his application.  In his witness statement, Mr. Gupta apologises for not having notified the Clerk of the Rules of the change of circumstances sooner; he explains that he was on leave for some of the relevant period, and therefore was not immediately involved in the last minute developments;

iv) The trial bundle had been sent to the court in the DX on Friday 3 July 2015, but too late for effective lodging with the court for the hearing due to commence on Monday 6 July 2015.

7. The effective management of family cases before the courts depends upon strict compliance by parties with court orders: orders are orders (see Re W [2013] EWCA Civ 1177).  Court time is precious, and the efficient administration of the court lists in the Royal Courts of Justice (as elsewhere around the country) depends upon parties, and where represented, their solicitors, conscientiously advising the listing offices of changes in time estimates.  This is a case in which failures to comply with court orders, and to notify the listing office of change of circumstances, led to extensive Court time being allocated and preserved for this case unnecessarily, most likely to the detriment of other families whose cases need urgent consideration.

8. It is in this context that I regarded it as necessary to consider the question of wasted costs.   Given that the mother's legal team were, in my judgment, at least partially responsible for the failures, I limited my consideration only to a portion of their costs.

9. Section 51(1) of the Senior Courts Act 1981 provides that, subject to rules of court, costs shall be in the discretion of the court.  In family cases, the relevant rule governing the award of costs is rule 28.1 of the Family Procedure Rules 2010 ('FPR 2010') which provides a wide discretion, viz:

"The court may at any time make such order as to costs as it thinks just".

10. The rules relating to wasted costs are set out in section 51(7) of the Senior Courts Act 1981.   It is open to me to make an order for wasted costs where I am satisfied that there has been "any improper, unreasonable or negligent act or omission on the part of any legal or other representative or any employee of such representative" or "which, in the light of any such act or omission occurring after they were incurred, the court considers it is unreasonable to expect that party to pay". I have interpreted the terms "improper, unreasonable or negligent" as they were defined in Ridehalgh v Horsefield & Another [1994] Ch 205:

""Improper" means… conduct which would ordinarily be held to justify disbarment, striking off, suspension from practice or other serious professional penalty…. "Unreasonable" also means what it has been understood to mean in this context for at least half a century. The expression aptly describes conduct which is vexatious, designed to harass the other side rather than advance the resolution of the case … "negligent" should be understood in an untechnical way to denote failure to act with the competence reasonably to be expected of ordinary members of the profession".

11. Duncan Lewis is a firm with a distinguished record of representing clients within the family law jurisdiction.  It surely does not need reminding of the comments of Munby P in Re W (above).  They, as all other practitioners in the field, should amply recognise that the courts cannot function effectively if those who access them are guilty of "the slapdash, lackadaisical and on occasions almost contumelious attitude" of which Munby P in that case complained.  The warning for failing to comply is set out in [51] and [52]; it is clear:

"Orders, including interlocutory orders, must be obeyed and complied with to the letter and on time. Too often they are not. They are not preferences, requests or mere indications; they are orders: see Re W (A Child) [2013] EWCA Civ 1227, para 74." [51]
"The court is entitled to expect – and from now on family courts will demand – strict compliance with all such orders. Non-compliance with orders should be expected to have and will usually have a consequence."

12. In this instance, I am satisfied that the explanations offered by Duncan Lewis do not adequately or satisfactorily account for the failures which I identified in my order (see [4] above), and I consider that therefore the mother, and the court, has been put to additional cost in the preparation for the hearing.   As earlier indicated, both sides appear to have paid somewhat casual regard to the strict requirements of the order.  Whether difficulties in complying with court orders arise out of funding difficulties or otherwise, solicitors must be assiduous in ensuring compliance, or seeking specific alternative direction from the court. 

13. I accept that the failure to file a statement arose in part (at least) by the failure of the mother (for funding reasons) to do the same, but this should have been raised with the Court at the earliest time, and an extension of time sought.   There was no proper excuse for Duncan Lewis not notifying the mother's solicitors straight away when they knew that the father was actively pursuing fresh applications in the US Court; their reasons for not doing so summarised in [6(ii)(a)-(c)] do not properly justify their stance.  While some effort was made to notify the Clerk of the Rules of the changed time estimate, this was far too late in the day in these circumstances; the father's solicitor should have been on to this much earlier.  Failure to lodge the bundle in an effective and timeous way was a failure on the part of the solicitor which caused considerable disruption to my own preparation of the case for hearing. 

14. Taking all of these matters together, I am of the view that Duncan Lewis failed to act on this occasion with the competence reasonably to be expected of ordinary members of the profession, and this justifies a wasted costs order in this case. 

15. While I accept the apologies offered by Mr. Gupta in his witness statement, the order I propose to make is that Duncan Lewis shall contribute £1250 or 25% of the assessed costs of the mother of this hearing, whichever is the lesser sum.

16. That is my judgment.