Neutral Citation Number: [2009] EWCA Civ 311
Case No: B4/2009/0049
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM 
Pauffley J on 19 December 2008 in private law proceeding 
under the Children Act 1989

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 23/04/2009
Before :

LORD JUSTICE WALL

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Between :

	EM	Appellant	
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	SW	Respondent	
			
	M (A Child)		

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Michael Nicholls QC (instructed by International Family Law Chambers - Solicitors) for the Appellant
No-one attended for the Respondent

Hearing date: 2nd April 2009
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Judgment

Lord Justice Wall:

1.	On 2 April 2009, Mr. Michael Nicholls QC renewed orally an application by a father for permission to appeal against an order for costs made by Pauffley J on 19 December 2008 in private law proceeding under the Children Act 1989 between the father and the mother of a child J-M, a boy of 9.  The case concerned the father’s application for contact with J-M.  Permission to appeal had previously been refused on the papers by Hughes LJ on  5 February 2009.
2.	Given the state of the list on 2 April, and my discovery that a second file, which I had thought to contain duplicate documents,  in fact contained material documents which I had not read,  I took the unusual course of hearing Mr Nicholls’ submissions and then of reserving judgment.
A second appeal
3.	Pauffley J’s order, the substance of which is not challenged, was in fact made on appeal from a decision of district judge Malik, sitting in the Principal Registry on 26 June 2008. The judge allowed the mother’s appeal, and ordered the father to pay £20.000 towards the mother’s costs. The father seeks to challenge only the costs order.
4.	Having considered the matter, I have come to the view, that, despite Mr. Nicholls’ able argument, this is a case falling well within the ambit of a properly exercised judicial discretion, and that an appeal from Pauffley J’s order would not stand any reasonable prospect of success. It follows, I think, that the case does not, in my judgment, raise any important point of principle or practice, and thus fails the Access to Justice 1999, section 55(1) test. I propose, however, nonetheless to set out my reasons for refusing this application in some detail.
The background
5.	For present purposes, I propose to take the background to the case from a document entitled “respondent father’s background, issues, parties’ positions” prepared on the father’s behalf for the appeal hearing before Pauffley J.
6.	J-M is the only child of the marriage between the mother and the father, who were married in April 1999 and separated in November 2006, when the mother started divorce proceedings.  In April 2007, after J-M had spent some of his Easter holiday in France with the father, the mother stopped contact between them.  The father issued an application for a contact order, which – for reasons I do not understand - was only heard nearly a year later on 26 June 2008 by district judge Malik, sitting in the Principal Registry of the Family division (PRFD). At that hearing, the father was represented by junior counsel. The mother appeared in person, having withdrawn her instructions from her solicitors on or about 17 June 2008. Her case was that she had run out of  funds, and had no money to pay her solicitors.
7.	It appears that the district judge heard from the mother, the father and from the jointly-instructed independent expert. He made an (unsupervised) contact order, and the mother appealed.
The grounds of appeal
8.	The grounds of appeal are extensive, and were settled by leading counsel, Mr. Charles Geekie QC.  The first ground is divided into five and in essence complains of breaches by the district judge of two of the President’s Practice Directions; firstly that of 27 July 2006 relating to court bundles [2006] 2  FLR 199; and secondly that relating to domestic violence in the context of applications for contact, now  reported at [2008] 2 FLR 103. It also complains of the district judge’s refusal to grant the mother an adjournment, the order requiring the mother to surrender the child’s passport to the father’s solicitors and the attachment of a penal notice to the order without notice of the application for a penal notice having been given to the mother. It was also said that the judge had been wrong in the circumstances of the case to order unsupervised contact and contact abroad. There was an application to adduce fresh evidence. The mother sought an order setting aside the order of the district judge and made an application for her costs.
The judgment of Pauffley J
9.	In allowing the appeal, Pauffley J was highly critical of the district judge, and upheld most if not all of the mother’s complaints. In particular, she upheld the mother’s complaint that the district judge had failed properly to address the question of domestic violence and had been plainly wrong to make an order for unsupervised contact without  properly addressing what she described as “the safeguarding issues”. There had been “no satisfactory exploration of these highly significant matters”, no attempt to establish the facts, and a disregard both of the President’s Practice Direction and he well known case of  Re V, M L and H [ 2001] Fam. 260.
10.	That finding was, of course, sufficient to dispose of the appeal. However, Pauffley J, whilst recognising that the district judge enjoyed a wide discretion in resolving a contact dispute, nonetheless went on to uphold the mother’s complaints about the refusal of the district judge to grant the mother a short  adjournment, and whilst taking the view that – by itself – the complaint about the breaches of the Practice Direction relating to bundles would not have been sufficient to render the hearing unfair, the judge nonetheless took the view that, taken with the other matters raised by the mother, “the failure on the part of the father’s team to appraise the mother of how they would be approaching the two day hearing only serve(d) to add to the sense that the mother was being treated in a way that was less than was (sic) either proper or fair.”
11.	The judge also upheld the mother’s complaints about the district judge’s refusal to read, let alone admit, a statement from a witness prepared on the mother’s behalf. Finally, she upheld the mother’s complaints; (1) that she had been required to lodge the child’s passport with the father’s solicitor; and (2) that the judge had imposed a penal notice on the order.
12.	In summary, therefore, the judgment stands as a severe indictment of the district judge and the fairness of the hearing he had conducted.
The order for costs
13.	The mother asked for her costs of the appeal to be summarily assessed and paid by the father. The costs were said to be in excess of £26,000. The judge made an order that the father should pay £20,000 towards the mother’s costs of the appeal, that sum to be paid in full by 15 January 2009. It is this order which the father seeks permission to appeal.
The refusal of the application on paper
14.	The application for permission to appeal was refused on paper on 5 February 2009 by Hughes LJ. He appears to have done so on three bases: firstly, that costs were in the discretion of the judge;  secondly, that it was a relevant factor that the costs were made at the conclusion of an appeal; and thirdly that the judge was in the best position to judge whether or not a case this was a case which required a fact finding hearing and whether or not the father’s litigation conduct in failing to recognise the inevitable was unreasonable.
The attack on the judgment
15.	Mr Nicholls launched a detailed and elaborate attack on the judgment of Pauffley J.  She was, he said,  very clear why she made the costs order against the father: “I did it on the basis of the litigation conduct during the currency of the appeal process.”. At the same time, however, he argued that she had also made it clear that it was not the father’s fault that the district judge had not conducted the investigation with which he was charged.
16.	Mr Nicholls argued that there had been no dispute before Pauffley J. that the principles applicable to making costs orders in appeals from a district judge to a judge of the High Court were those applicable to children’s cases generally. This was because appeals from district judges sitting at the PRFD to judges of the High Court fall within the definition of “family proceedings” in Civil Procedure Rule (CPR) 2.1(2)  and therefore the CPR did not generally apply to them. When the costs rules in the CPR were applied to family proceedings by the Family Proceedings (Miscellaneous Amendments) Rules 1999 [SI 1999/1012], rule 44.3(2), embodying  the principle that costs follow the event, was specifically disapplied: - see rule 4(b). Mr Nicholls argued that in such as case, an order for costs should not be made unless the party against whom an order is sought has been unreasonable in the conduct of the litigation.  This, he argued, had also been made clear by this court in Re T (Order for Costs) [2005] EWCA Civ 311, [2005] 2 FLR 681, in which, giving the judgment of he court, I had said:
The principles relating to costs in family proceedings relating to children 

[36]   The principles, which fall to be applied, are not, we think, in dispute. The judge summarised them succinctly in the following way: 
 
2.1 The CPR apply. Under normal circumstances, according to r 44.3(2) (a), the general rule is that costs should follow the event, although the court can make a different order (r 44.3(2)(b)). 

2.2 However, this general rule does not apply to family proceedings (Family Proceedings (Miscellaneous Amendments) Rules 1999). 

2.3 It is suggested that even in family proceedings, the general rule is probably the starting point but can more easily be displaced (Gojkovic v Gojkovic (No 2) [1992] Fam 40). 

2.4 In cases involving children in particular, costs awarded against one parent or another are exceptional since the court is anxious to avoid the situation where a parent may feel “punished” by the other parent which will reduce co-operation between them. This will only impinge ultimately on the welfare of the child or the children concerned (London Borough of Sutton v Davis (Costs) (No 2) [1994] 2 FLR 569; Re M (Local Authority’s Costs) [1995] 1 FLR 533). 

2.5 The conduct of the parties is in reality the major consideration when deciding whether or not an exceptional order for costs should be made. It should only be made if the penalised party has been unreasonable in his or her conduct. Moreover the ‘unreasonableness’ must relate to the conduct of the litigation rather than the welfare of the child (R v R (Costs: Child Case) [1997] 2 FLR 95). 

2.6 One has to be very careful in this distinction when, as in the case of (the mother), the apparent unreasonableness is as a result of the personality of the relevant party. In such circumstances, there is often an overlap of that party’s conduct of the litigation and the conduct relating to the welfare of the child.

2.7 At the beginning of my involvement (the father) was applying for contact in relation to A as well as J. His welfare has also been a concern from time to time throughout. However, the costs in dispute have been incurred in relation to J’s welfare alone.’
17.	Later in the same judgment, under the heading Discussion and analysis, I had said: -
[46]   Despite the extensive citation of authority, we think the principles governing the award of costs in children’s cases are well established and more than adequately summarised by the judge in the extract from her judgment, which we have set out at para [36] above.”
18.	Against this background, Mr. Nicholls made the following submission:-
(1) If it was right, as the judge accepted, that the father was not at fault in the events that led to the appeal and that the principles to be applied to making orders for costs were those applicable to children’s cases generally, then the judge was wrong in principle to make the costs order. It could not be right to say that a litigant can have no expectation of a competent tribunal, and must be alert to the possibility of the case being so ineptly conducted by the judge that they may have to accept that not only is the outcome worthless, and the costs incurred wasted, but if they try and support it they may find themselves paying the other party’s costs as well.
 
(2) It is difficult to see how defending a process that involved a considerable amount of evidence being filed (and read), the parties and the expert witness all being heard and a reasoned judgment being delivered could be described as being unreasonable. It should be noted that in her judgment, Pauffley J. said that “very many” of the criticisms made of district judge Malik were well-founded, not all of them. How was it possible to predict which of the mother’s criticisms would find favour with an appellate judge? Or how many, on aggregate, would cause the process to be so defective that to claim otherwise would be unreasonable?

(3) The position of the hapless litigant is made worse by the very clear position that a trial in a case involving the care and welfare of children will not necessarily be conducted in the manner which they believe to be the most suitable or appropriate. As the father pointed out in his skeleton argument before Pauffley J., for years it has been stressed that, provided that the trial process meets the minimum standards in Article 6 ECHR (and perhaps even that is not actually necessary), judges trying children’s cases have very considerable discretion about how they do it.  This is clear from Re C (Contact: Conduct of Hearings) [2006] 2 FLR 289 in which Wilson LJ had said that:

[33]   Judges exercising jurisdiction in relation to children have, in my view, a broader discretion in the mode of their conduct of the hearing than do judges in the exercise of a conventional civil jurisdiction. Put another way, the sort of hearing which might be adjudged unfair, and therefore unlawful, in an ordinary civil context may, nevertheless, be lawful in a child context. The difference is largely attributable to the facts that, although of course the welfare of the child is not the paramount consideration in the judge’s determination as to how to conduct the hearing, it is a relevant consideration; and that, unless to do so is essential to a proper determination of future arrangements for him, the child’s welfare will not be served by taking a course likely to fan the flames of the animosities of the adults who surround him. Furthermore this court must consistently strive to be imaginative about the reasons, often deliberately left unexpressed at least in part, why a trial judge in a child case takes a particular decision, whether substantive or procedural; and it must also be constantly alive to the need, and even in the absence of need at any rate to the entitlement, of the judge often to act robustly in the exercise of this jurisdiction.

(4) In his reasoning, Wilson LJ. referred to the judgment of Butler-Sloss LJ (as she was then) in Re B (Minors)(Contact) [1994] 2 FLR 1:

In a passage of her judgment which is generally regarded as of supreme value for judges exercising jurisdiction in relation to children, Butler-Sloss LJ said, at 5F–H:
 
‘In my view a judge in family cases has a much broader discretion … to conduct the case as is most appropriate for the issues involved and the evidence available … There is a spectrum of procedure for family cases from the ex parte application on minimal evidence to the full and detailed investigations on oral evidence which may be prolonged. Where on that spectrum a judge decides a particular application should be placed is a matter for his discretion. Applications for residence orders or for committal to the care of a local authority or revocation of a care order are likely to be decided on full oral evidence, but not invariably. Such is not the case on contact applications which may be and are heard sometimes with and sometimes without oral evidence or with a limited amount of oral evidence.’

(5) As recently as September 2008 the Court of Appeal had re-affirmed the wide discretion whether or not to hear evidence on disputed matters of fact: see Re F-H (Dispensing with Fact-Finding Hearing [2008] EWCA Civ 1249 (10 September 2008):

[26]   There is no doubt that in family proceedings the court has a discretion whether to hear evidence in relation to disputed matters of fact with a view to determining them. In A County Council v DP and Others [2005] EWHC 1593, [2005] 2 FLR 1031, McFarlane J, at para [24], helpfully identified, by reference to previous authorities, nine matters which the court should bear in mind before deciding whether to conduct a particular fact-finding exercise.

(6) In the light of that, how could a litigant or his advisers possibly know when the discretion of the judge had been exceeded to such an extent that to claim otherwise would amount to litigation misconduct? 

(7) Added to that, in the father’s case the matter had come before another High Court Judge, Holman J., before the hearing before Pauffley J. If it was so overwhelmingly obvious that district judge Malik had failed to conduct a proper hearing why did not Holman J. notice it? Why did he not urge the father to concede the appeal and save all the costs? Or simply direct a re-hearing? Why was no application made to the effect that the appeal should be allowed there and then because there was no possible response to it? 

(8) As it was, Holman J. refused a stay on the order other than in terms which the father was content to accept. 

(9) . In her judgement, Pauffley J. immediately after saying that the father was not to be criticised for district judge Malik’s failure to convene an adequate investigation, said that:  “..he had lawyers at court who could have perhaps put the district judge on the right path.”.   Here the judge seemed to be relying on a failure on the part of the father’s lawyers to justify a costs order. But what exactly are the obligations on litigant’s lawyers in these circumstances? Plainly their primary duty is their client. It is quite improper (not to mention unreal) to suggest that, with the case going well for their client, they had a duty to suggest to the judge that he was handling the case so badly that the outcome might be regarded as unsafe.

Discussion and analysis
19.	Well as the points were advanced by Mr. Nicholls (and it is difficult to see how they could have been better put) I am clear that on the facts of this case none of them is properly arguable, and that an appeal against Pauffley J’s decision would stand no reasonable prospect of success.
20.	In my judgment, the fundamental fallacy in Mr Nicholls’ argument is that he confuses the principles which apply to hearings at first instance with the principles which apply when the court is hearing an appeal from a decision at first instance. The distinction is neatly illustrated by a point taken by the judge in the course of argument. Mr. Nicholls had opened his submissions to the judge on the appeal by asserting that, if successful, the father would be seeking an order that the mother pay his costs of the appeal. Why, asked the judge (in effect) is sauce for the goose not sauce for the gander? Mr. Nicholls answer, when I put the same question, was that successful opposition to a contact appeal could legitimately be premised on the proposition that those who appealed such orders were attacking the particularly broad exercise of a judicial discretion, and should take the consequences for doing so.
21.	A moment’s reflection, however, shows that this answer will not do. It is tantamount to saying that there could never be a successful appeal against a contact order. Plainly, that is not the case. In the instant case, Mr. Nicholls does not attack Pauffley J’s decision to allow the appeal: there is no appeal against the judge’s substantive order setting the district judge’s order aside, nor could there be. So an appeal against the making of a contact order can be premised on a variety of grounds.
22.	It must follow, in my judgment, that a judge hearing such an appeal must have a broad judicial discretion over the question of costs. Clearly, there will be circumstances in which the judge will refuse to make an order for costs: there will equally be circumstances in which the judge will make such an order.
23.	The reason there is a difference between an appeal and a hearing at first instance is, in my judgment, obvious. At first instance, nobody knows what the judge is going to find. Thus in Re T, upon which Mr. Nicholls relies, the  father did not seek his costs of a number of hearings in which the mother had failed on the facts and he had succeeded: he did not do so because he appreciated that it was reasonable for the mother in that case to advance a view to the judge at first instance which, even if was rejected, was one which she had genuinely held. It was only when her litigation conduct became unreasonable, when, for example, she refused to accept findings made by the judge, that her litigation conduct could be said to have become unreasonable and thus vulnerable to a costs order.
24.	The  further difference between a hearing at first instance and a hearing on appeal is not far to seek. A party to a hearing at first instance who then faces an appeal has the opportunity to take stock, and to make Calderbank  offers to compromise it. I appreciate, of course, that this places a burden on the shoulders of those advising the litigant who has succeeded at first instance: but if such a litigant – as here - opposes an appeal root and branch, and announces, as Mr. Nicholls did to the judge, that he intends to seek his costs if successful,  then in my judgment such a litigant cannot complain if, when allowing the appeal, the judge takes the view that he should contribute to, or pay, the appellant’s costs.
25.	Pauffley J was aware of these matters. In the course of her ruling on the costs issue she said:-
I bear in mind also that there has been an ability on the father’s part, since at least October (and perhaps before then) to take a view, together with his lawyers, as to whether it was right or appropriate to continue to oppose  the appeal. It is that matter that causes me to believe that it is appropriate for (the father) to pay at last a proportion – and a fairly large proportion – of (the mother’s) costs.
26.	To answer this proposition, Mr. Nicholls advances the directions hearing before Holman J. I have rehearsed the argument in paragraph 18(7) above. In my judgment, any suggestion that Homan J should have advised the father to abandon his resistance to the appeal does not get off the ground.  A judge hearing a directions appointment in a contested appeal cannot, almost by definition, get a feel for its merits. Even if he or she does, the potential accusation of premature adjudication would be seriously inhibiting. 
27.	It follows, in my judgment, that Mr. Nicholls’ arguments  are misconceived when related to the facts of  the instant case. The simple fact of the matter is that the mother won her appeal. She did not seek to disturb the fact that the district judge had made no order as to costs. But she did seek her costs of the appeal. The judge had a judicial discretion to make such award, which she exercised in the mother’s favour.  In my judgment, none of Mr. Nicholls’ able arguments either dents the existence of the discretion or its exercise on the facts of the instant case. An appeal to this court would thus simply be throwing good money after bad.
28.	The application for permission to appeal against Pauffley J’s costs order will, accordingly, be refused.
29.	I should, however, for the avoidance of doubt, make it quite clear that I am not making any criticism of the conduct of junior counsel who conducted the father’s case before the district judge. I can recall cases in my own experience when I succeeded at first instance too well, and then lost anything on appeal.  I would have been very upset had it been said that I should have attempted to put the court back on the rails. I do not say that there are no cases in which counsel may have a duty to do so: this is not, however, in my judgment, one of them.