Jersey Unreported Judgments

Appeal regarding application by the Respondent for costs of an abortive appeal.

[2018]JCA020

Court of Appeal

24 January 2018

Before     :		Sir William Bailhache, Bailiff of Jersey, President; and Nigel Pleming., Q.C., and Jonathan Crow., Q.C.
Between	C		Appellant
And	D		Respondent

Advocate H. J. Heath for the Appellant.

Advocate J. F. Orchard for the Respondent.

judgment

crow ja:

Introduction

1.             This is an application by the Respondent ("the Mother") against the Appellant ("the Father") for the costs of an abortive appeal to this Court ("the Appeal").  The Appeal was lodged on 15 November and withdrawn on 18 December 2017.  The Mother seeks indemnity costs.  The Father seeks no order as to costs. 

2.             Before considering the merits of the parties' respective positions, it is necessary first to provide a brief summary of the salient facts.  A more detailed account is given in the judgment of the Royal Court (Samedi Division) dated [redacted] ("the Fact Find Judgment").  The summary set out below is taken from that judgment. 

The background facts

3.             The Mother and Father married in [date redacted].  They have two [gender redacted] ("the Children"), one aged [age redacted] and the other aged [age redacted].

4.             The parents parted and were divorced in [year redacted].  Since then the Children have lived with the Mother, who has now remarried and had a [child - gender redacted] by her new husband.

5.             Various contentious issues arose between the parties relating to residence and contact, and also the parties' finances.  The court conducted a fact-finding hearing in the children's proceedings in 2013, and a judgment was handed down on [date redacted].  It included, among other things, the following findings:- [significant findings made in the 2013 judgment, as summarised in paragraph 7 of the Fact Find Judgment, were then set out].

6.             The court then ordered and obtained various reports from a number of clinical psychologists, and was also assisted by the Guardian.  In due course, a contact order was made by consent on [date redacted] ("the Contact Order") allowing only for indirect contact between the Father and the Children, but expressing the hope that progress would be made towards establishing direct contact within 12 months.  The order included an undertaking by the parties to assist the child psychologist, [name redacted], in progressing towards this objective. 

7.             Indirect contact was maintained, but no direct contact was established.  The Father blamed the Mother, and on [date redacted] he issued a Representation and supporting Affidavit alleging contempt by her, based on alleged breaches by her of the undertaking to assist [the child psychologist].  Five days later he issued a contact application.  For her part, the Mother denied any breach of the Contact Order, and maintained that the Father had not evidenced the necessary precursors to change which are required for contact to progress in a safe, child-focused manner, that he remained preoccupied with her mental health, and that he had sought to undermine and control her. 

8.             The contempt application against the Mother was heard between [dates redacted].  The Royal Court read and heard voluminous evidence, including 4 lever-arch files of documents, and live evidence from the parents and from [the child psychologist].  The court circulated its detailed, 35-page Fact Find Judgment in draft on 16 October 2017.  In the meantime, a welfare hearing had been fixed for 27 November 2017. 

9.             The Fact Find Judgment was then handed down formally on [date redacted].  It dismissed all of the Father's allegations of contempt of court against the Mother as being "totally without merit" (paragraph 105).   It did, however, include these findings regarding the Father:- [paragraphs 101-119 of the Fact Find Judgment were then set out in full].

10.          Three days after the Fact Find Judgment was formally handed down, the Father informed the other parties that he intended to appeal.  A meeting was then held on 15 November between the parties' respective legal advisers, the Guardian and the Guardian's legal representatives.  According to the Mother, the Guardian's legal representative advised the Father's legal adviser "in the strongest possible terms"[1] that pursuing an appeal was not in the Children's best interests and that the final hearing date on 27 November should be maintained if at all possible.  A note of the meeting has been produced which records the Guardian's legal representative as having said words to the effect that -

"On behalf of the children - best interests - all experts incredibly clear that proceedings are not in their best interests

Adverse impact on the children

Wants to keep trial dates - willing to do what is necessary

Matter needs to come to an end

Does not want the adjournment

...

Tactical to lose trial dates".

Advocate Heath, who attended that meeting and represented the Father in this Court, accepted that this was a fair record of what was said at the meeting.

11.          Despite the views expressed on behalf of the Guardian, the Father lodged his Appeal the same day.  It raised four Grounds of Appeal:-

(i)        Ground 1 was that "The Court's Finding that the Father's Actions were punitive are perverse or unreasonable".  This was based on the following interpretation of the Fact Find Judgment:

"13.     The Court found the Father's pursuit of litigation during February 2017 was wrong.  The Court found that the writing of letters to the Mother during July and September 2016 was wrong and that an insistence of [sic] contact developing was also wrong ...

15 ...

(d)       [The child psychologist's] own evidence to the Court was he had advised the Father he was unable to move this contact forward and the Father's only remedy was Court action."

(ii)       Ground 2 was that "The Court's Findings would, if upheld, in effect ouster [sic] the jurisdiction of the Court and are contrary to the interest of justice".  This was based on the following assertions in the Notice of Appeal:-

"20.     The Fact Find Judgment, in effect, concludes that where contact has not progressed for 2½ years applications to the Court should be discouraged and correspondence to the resident parent is inappropriate.

21.  The Court did not consider, and gave no indication, that they had considered how the Father in these circumstances, could or should have moved the contact on.  This is an error."

(iii)      Ground 3 was "Failure to Consider Relevant Material".  This was based in large part on an assertion that the Royal Court fell into error in holding that the Father continues to suggest that the Mother is suffering from a personality disorder, whereas (so he said) "the Father was willing to accept the Mother's mental health is currently stable".[2]  There were also two other points on which the Royal Court was said to have reached a wrong conclusion on the facts.[3]

(iv)      Ground 4 alleged "An unbalanced approach to the Evidence of the Parties".  This was based on an alleged error by the Royal Court in "conflating the findings in respect of the contempt case ... with the findings in respect of the Mother's behaviour".[4] 

12.          As a result of the Appeal being lodged, the hearing date fixed for 27 November was vacated on 20 November.  The Father's Contentions in support of the Appeal were originally due on 15 December, but following an application made on 12 December, the due date was extended to 19 December.  The Appeal was then withdrawn on 18 December, the day before the Father was due to serve his Contentions.  Nevertheless, during the course of this appeal we were shown a copy of the draft Contentions that had been prepared on behalf of the Father, and we will deal with them in more detail below. 

The issues before this Court

13.          The following issues fall for determination by this Court:-

(i)        Does the Father need leave to withdraw the Appeal?

(ii)       Should the Father pay the Mother's costs of and incidental to the Appeal?

(iii)      If so -

(a)       in respect of which period,

(b)       on what basis,

(c)       should any interim payment on account of costs be made, and

(d)       should this Court ensure finality as to the quantum of the costs liability?

The first issue: leave to withdraw the appeal

14.          There is a regrettable element of uncertainty arising from the rules as to whether the Father requires leave to withdraw the Appeal.  On the one hand, rule 10A(1) of the Court of Appeal (Civil) Rules 1964 ("the Court of Appeal Rules") provides that an appellant "may abandon his or her appeal by written notice to the Judicial Greffier".  If that were the applicable rule, it is clear that no leave would be required.  On the other hand, rule 24 of the Children Rules 2005 appears to have been drafted on the assumed basis that an appellant who wishes to 'withdraw' an appeal made under Article 68(1)(b) of the Children (Jersey) Law 2002 has to make an 'application' in that regard:  in particular, rule 24(1) requires appeals under Article 68(1)(b) to be made pursuant to that rule, and rule 24(10) provides that "An Application to (a) withdraw the appeal ... may be heard by a single judge of the Court of Appeal".

15.          This apparent inconsistency ought to be addressed by legislation clarifying either or both of the Court of Appeal Rules and the Children Rules.  In the meantime, however, we must work within the relevant provisions as they stand, making the best sense we can of them.  To that end, we would make the following preliminary observations:-

(i)        First, as a matter of principle and of vires, it would be anomalous (both in terms of the nature of the enabling legislation and also in terms of the identity of the rule-making body) for rules governing the procedure in this Court to be made, not by this Court under the rule-making power conferred on it by Article 19(1) of the Court of Appeal (Jersey) Law 1961 ("the Court of Appeal Law") but by the Superior Number of the Royal Court under the rule-making power conferred on them by Article 67 of the Children (Jersey) Law 2002 ("the Children Law") which is the provision under which the Children Rules were made.

(ii)       Second, whilst rule 9(1) of the Children Rules (to which our attention was drawn during the course of argument) provides that "An application may be withdrawn only with leave of the Court", for these purposes the word 'Court' is defined in rule 3 to include the Inferior Number, the Bailiff or the Greffier, but not this Court.  It is accordingly possible that rule 24(10) of the Children Rules was drafted with an imperfect understanding of the scope of the requirement in rule 9 for leave to withdraw an application.

(iii)      Third, not only do the Children Rules define the word 'Court' in a way that does not include this Court, but also the word 'proceedings' is defined in rule 2 of the Children Rules in such a way that does not include appeals to this Court (at least certainly not expressly).  In the circumstances, it would be doubly anomalous to conclude that the Children Rules purported to override any express provision in the Court of Appeal Rules with regard to the procedure in this Court.

(iv)      Fourth, whilst rule 24(10)(a) of the Children Rules appears to assume that permission is required for an appeal to be withdrawn, as a matter of substance it does not impose a requirement in that regard.  Its only substantive effect is to confer on a single judge of this Court the power to determine any application that is made for the withdrawal of an appeal.

(v)       Finally, in order to resolve any inconsistency between the relevant provisions of the Court of Appeal Rules and those in the Children Rules, resort might (arguably) be had to the notion of implied repeal, since rule 10A of the former was introduced after rule 24(10) of the latter.

16.          Having said all that, we should also record the following countervailing considerations:-

(i)        Article 67(1) of the Children Law provides that rules may be made "to give effect to this Law".  Article 68(1) then provides as follows:-

"Subject to any express provisions to the contrary made by or under this Law, an appeal shall lie -

(a) where the Judicial Greffier is exercising the functions of the court in accordance with Rules of Court, to the court; and

(b) in any other case, to the Court of Appeal,

against the making or refusal to make any order under this Law other than in relation to an interim order for periodical payments under Schedule 1."

It might therefore be said that making rules as to the procedure to be adopted in this Court in relation to any appeals under Article 68 falls within the rule-making power under Article 67(1).

(ii)       As a matter of policy, it may be perfectly understandable that a bespoke procedural regime should be made for all procedures relating to children, including appeals.

(iii)      In that context, it may be that the policy underlying rule 9 of the Children Rules would also suggest that, in the interests of maintaining judicial supervision and in the wider public interest, a requirement could logically be imposed for permission to withdraw an appeal.

(iv)      There may have been an intentionally different use of language in rule 24(10) of the Children Rules, which talks about 'withdrawing' an appeal, as opposed to  the language used in rule 10A of the Court of Appeal Rules, which talks about 'abandoning' appeals.

17.          If it were necessary to resolve the matter, we would marginally prefer the arguments in favour of holding that permission to withdraw the Appeal is not required, for the reasons given in paragraph 15 above.  However, in order to put the matter beyond any further argument in this case, we grant any leave that may be required.

The second issue: the Father's liability in costs

Introduction

18.          The second question (see paragraph 13(ii) above) is whether, as a matter of principle, any adverse order for costs should be made against the Father.  That requires consideration to be given (i) to the question of costs in children proceedings generally, (ii) to the question of costs in relation to withdrawn applications generally, and (iii) to the particular facts of this case.

Costs in proceedings relating to children

19.          This Court's jurisdiction in relation to the costs of a civil appeal derives from Article 16 of the Court of Appeal Law, which confers a broad discretion. 

20.          In many cases the court will order that costs should follow the event, but the general practice in proceedings relating to children is to make no order as to costs:  see I v. J [2014] JRC 111, at paragraph 8, citing In the matter of B [2011] JRC 045, citing the decision of the English Court of Appeal in Re R (A Minor) (Legal Aid:  Costs) [1997] 2 FLR 95, at 96 (which itself relied on the earlier English decisions in Keller v. Keller & Legal Aid Board [1995] 1 FLR 259, at 267-268, London Borough of Sutton v. Davis (Costs) (№ 2) [1994] 2 FLR 569, at 570H-571B, and Gojkovic v. Gojkovic (№ 2) [1992] Fam 40). 

21.          There are broadly three reasons for adopting this general practice.  All of them flow from the same root cause, namely that the overriding concern of the court is to protect and promote the interests of the child.  With that in mind, the following three considerations are likely to be present in most proceedings relating to children:-

(i)        First, orders for costs will tend to diminish the funds available to meet the needs of the family.

(ii)       Second, the parties should not be discouraged from putting forward arguments which they conscientiously believe to be in the child's interests for fear of being penalised in costs if the court happens to disagree.

(iii)      Third, since a costs order is almost invariably made (if at all) in favour of the winning party, making such an order in this context would add insult to injury thereby aggravating the sense of grievance felt by the losing party in circumstances which are already likely to be fraught, and any exacerbation of tensions would not operate in the child's interests.

22.          It is, however, important to emphasise that the practice of not making costs orders in proceedings relating to children is a practice, not a rule.[5]  Any one of the three factors outlined above may be absent in any given case, or its force may be enhanced or diminished by the particular circumstances in hand.  Alternatively, other factors may be present which militate in favour of (or against) making such an order.  The court always retains its discretion in this regard, and it is a discretion whose exercise must always be responsive to the particular facts of each case.  It would be both impossible and also misguided to attempt any exhaustive definition either of the circumstances that might justifiably prompt an adverse costs order in proceedings relating to children, or of the relevant factors which might properly be taken into account in any given case.

23.          For this reason, we are not inclined to adopt the approach suggested by the English Court of Appeal in Re T (Order for Costs) [2005] 2 FLR 681, where it said that an adverse costs order in proceedings relating to children "should only be made if the penalised party has been unreasonable in his or her conduct ... [in] the litigation" (emphasis added).  Whilst that is likely to represent the paradigm situation for making an adverse costs order, it should not necessarily be regarded as the only one.  Furthermore, for the avoidance of doubt, we would endorse the observations of Munby J in In re N (a child) v. A & others [2010] 1 FLR 454, where he said that unreasonable conduct in the litigation may open the door to making an adverse costs order, but it does not of itself necessitate the making of such an order.

24.          In relation to the exercise of the court's jurisdiction to make costs orders in civil cases more generally, our attention has rightly been drawn to the guidance given by this Court in Flynn v. Reid [2012] JLR 226.  There, Beloff JA pointed out at paragraphs 39-40 that the jurisdiction should in general be exercised by reference to the conduct and the interests of the parties, not the interests of their lawyers. 

Costs in relation to withdrawn appeals

25.          The Mother submits that "the starting point" is that the withdrawal of an appeal before it has been heard "should result in an order for indemnity costs" and that the burden is on the party withdrawing the appeal "to demonstrate why their behaviour was not unconscionable"[6] because (so she contends) the withdrawal of an appeal "is an implicit acceptance that the appeal has no merit".[7]  She seeks to rely in this regard on the decision of this Court in Dick v. Dick (née Naranjo) (6 April 1990).[8]

26.          We reject the approach urged on us by the Mother in this regard, and we do not consider that Dick v. Dick supports her argument.  An appeal might be withdrawn for any number of reasons, and it does not assist the debate to adopt a formalistic approach, or to talk about burdens of proof or presumptions (least of all a presumption that the withdrawal of an appeal implies unconscionable conduct).  Each case simply needs to be considered on its own facts.  Consistently with that approach, the decision in Dick v. Dick says no more than that a party withdrawing an appeal "may properly be ordered to pay costs on an indemnity basis" (emphasis added).  It is equally true to say that a party withdrawing an appeal may, depending on the facts, not be ordered to pay any costs at all.

27.          In exercising its discretion in any given case, the Court is likely to consider the reasons why the appeal was withdrawn and, in an appropriate case, to review the underlying merits of the withdrawn appeal (without conducting a full hearing and determining the substantive merits of the appeal solely for the sake of determining costs, unless that is utterly unavoidable): see for example Marange Investments (Pty) Ltd v. La Générale des Carrières et des Mines SARL [2013] JRC 119A.

The costs in this case

28.          The Mother submits that the Appeal was without merit, and also that it was "misleading" and that it misconstrued the findings made by the Royal Court.[9]  In particular, she contends that the Appeal sought to overturn findings of fact by the Royal Court, which is only possible in exceptional and rare cases,[10] and that the Appeal was lodged "solely in an attempt to vacate the final hearing of this case and place pressure upon the Respondent both financially and emotionally" and "in the knowledge that such action was specifically adverse to the best interests of the children".[11]

29.          In deciding whether to make any costs order against the Father, we have taken the following matters into account:-

(i)        The general (though not invariable) practice of the court is not to make costs orders in proceedings relating to children, for the reasons outlined in paragraph 21 above.

(ii)       On the facts of this case, not making a costs order against the Father would tend to diminish the resources available for supporting the Children: the Mother does not work and her sole source of income for supporting the children is from the maintenance payments received from the Father, and as such "her legal fees are being met from payments made for the benefit of the children".[12]  For that reason, one of the three factors which supports the general practice of not making adverse costs orders (i.e. the point in paragraph 21(i) above) is missing in this case.

(iii)      On the material we have seen, we do not consider that making an adverse costs order against the Father would be likely to discourage him from putting forward reasonable arguments in the interests of the Children, and hence one of the other justifications for not making an adverse costs order (i.e. the point in §21(ii) above) is also missing.

(iv)      Since the Appeal was withdrawn by the Father, rather than being dismissed after a contested hearing, it is highly unlikely that making an adverse costs order against him could have the effect of adding insult to injury: there is no injury in a party voluntarily withdrawing his own appeal.  In the circumstances, the third rationale for not making costs orders in cases relating to children (i.e. the point in paragraph 21(iii) above) is also missing, or at least it is present only in an attenuated form.

(v)       This is not a case where there had been any time pressure to decide whether or not to initiate an appeal.  The Fact Find Judgment was circulated in draft on 16 October, and the Appeal was not lodged for another month.  In other words, the Father's decision to lodge the Appeal was taken after full consideration.

(vi)      For the reasons outlined in paragraph 10 above, the Father had good reason to believe that pursuing the Appeal, and thereby causing the trial date on 27 November to be vacated, was not in the best interests of the Children.

(vii)     Both the objective reasonableness of the Father's conduct, and also our assessment of his subjective appreciation of the reasonableness of what he was doing, need to be considered in light of the fact that (i) [redacted reference to professional experience]and (ii) he is being professionally advised by specialist practitioners.

(viii)    The withdrawal of an appeal before any Contentions have been lodged is an extremely unusual step, and the Court is entitled to expect an explanation from the Father.  In this case, the Father has not put forward any witness evidence to explain his change of heart.

(ix)      The explanation offered through his Advocate is that, between 15 November (when the appeal was lodged) and 18 December (when it was withdrawn) the Father changed his mind, finally accepting the advice he had been given that it was not in the Children's interests to pursue the appeal, and that his prospects of establishing direct contact would improve if the Appeal were not pursued.  In other words, even on the Father's own case, objectively speaking nothing had changed between 15 November and 18 December to justify his change of heart. 

(x)       The Mother points out that the one thing that did change between those two dates was that the final hearing fixed for 27 November had been vacated.  That supports the inference that the Mother invites us to draw, namely that vacating that hearing was the Father's objective (or at least one of his objectives) in lodging the Appeal.

(xi)      Advocate Heath sought to dissuade us from drawing that inference by showing us the application made by the Father on [date redacted] for interim contact which (she submitted) indicated that the Father was keen for the final hearing to take place.  However, we are not persuaded that the interim contact application provides any support for the Father's argument in this regard: rather, it represents a step taken by him to cater for the situation that arose in circumstances where the final hearing of his substantive contact application was not going to be determined in the near future.

(xii)     The Fact Find Judgment (which is what prompted the Appeal) contained a number of serious findings against the Father in relation to his previous conduct of the litigation, some of which are set out in paragraph 9 above.  Those matters form part of the relevant background against which our discretion in costs needs to be exercised.

(xiii)    The Mother has drawn our attention to the basis on which the Batonnier awarded her legal aid, which included specific reference to "the behaviour of the adverse party (who has already received an order under article 66(8) of the Children's Law" which was likely to increase costs. 

(xiv)    Finally, for the reasons set out in more detail in paragraph 30 below, we consider that the Appeal was highly likely to fail, and that it was founded at least in part on a significant and unjustified misreading of the Fact Find Judgment.

30.          Within the constraints of a hearing on costs, we have formed the clear view that the Appeal was highly likely to fail:-

(i)        Most fundamentally, the Appeal represented an attempt to overturn clear findings of fact which had been made by the Royal Court after careful consideration had been given both to documentary and to oral evidence.  In the circumstances, the Father rightly recognised, in his draft Contentions for the abortive appeal, that the threshold test he had to satisfy was proving that the Royal Court had been "plainly wrong".  Furthermore, the issue in the contempt proceedings was whether the Royal Court was satisfied, to the criminal standard, that the Mother was in contempt of court.  In our judgment, the criticisms levelled at the Fact Find Judgment in the Notice of Appeal and in the draft Contentions come nowhere near satisfying the relevant threshold test in this regard.

(ii)       More specifically, the Father's draft Contentions (i) object that the Royal Court failed to assess separately the credibility of each witness,[13] and (ii) identify a number of points in the Mother's evidence which (the Father says) demonstrate her animosity towards him and display an inclination on her part not to assist in working towards direct contact, but which the Royal Court does not mention in the Fact Find Judgment.[14]  There may, or may not, be at least some force in these points:  but cumulatively they do not begin to demonstrate that the Father had any realistic prospect of showing that the Royal Court was plainly wrong in  refusing to find, to the criminal standard, that the Mother was in contempt of court.  In particular, we consider that the Father's allegation that "all the findings in relation to the mother's compliance [with the Contact Order] are flawed and cannot stand"[15] (emphasis added) was entirely unrealistic.

(iii)      Ground 1 in the Notice of Appeal was based largely on a misrepresentation of the Fact Find Judgment.  The Notice of Appeal attempted to portray that judgment as expressing disapproval of any attempt to make progress towards direct contact, and as disapproving all forms of correspondence from a parent seeking direct contact.[16]  In truth, the Fact Find Judgment does no such thing:  rather, it expresses disapproval of the specific steps that this parent chose to take in the circumstances of this case - most notably, alleging contempt of court against the Mother.  In so far as the Father was alleging that the Fact Find Judgment was perverse or unreasonable in having held that he "continues to use litigation as a way of upsetting and punishing the mother", we consider his argument to have been hopeless: that is exactly what he was doing, and the contempt application is yet another illustration of exactly that strategy.

(iv)      Ground 2 was squarely based on a misrepresentation of the Fact Find Judgment - indeed, it was based on a gross mischaracterisation of its content and effect.  There is no rational ground for suggesting (as the Father did) that the judgment "concludes that where contact has not progressed for 2½ years applications to the Court should be discouraged and correspondence to the resident parent is inappropriate".[17]  Once again, the truth is simply that the judgment expressed disapproval of this parent's specific conduct in this case.

(v)       Ground 3 in the Notice of Appeal was expressed in opaque language: it said that "the Father was willing to accept the Mother's mental health is currently stable"[18] (emphasis added) but it did not say that, at the fact-find hearing, he did accept that.  Furthermore, the draft Contentions were expressed in different, and even more contingent language, saying that: "The father's evidence was that he was willing to accept that if the mother's mental health was stable then he accepted that"[19] (emphasis added).  In any event, we have set out above the finding of the Royal Court in paragraph 108 of its Fact Find Judgment.  That finding was based on professional evidence from [the child psychologist], and we can see no basis for impugning it - not least because the Father himself produced evidence at the fact-finding hearing which was calculated to demonstrate that the Mother has mental health problems (see paragraph 110 of the Fact Find Judgment) so it hardly lies in his mouth now to say that the court below erred in reaching the conclusion that he is still preoccupied with her mental health.

(vi)      On its face, Ground 4 was a complaint that the Royal Court conflated two separate issues (namely contempt and the fact finding exercise), but we can find no support for that suggestion in the Fact Find Judgment.  In truth, the Royal Court dealt comprehensively with the Father's allegations of contempt against the Mother (paragraphs 20-52 of the Fact Find Judgment) and then quite separately with the cross-allegations in the fact-finding issues (paragraphs 53-119).  There is no basis for suggesting that the two sets of issues were conflated.

(vii)     The draft Contentions contain a more nuanced argument in this regard,[20] suggesting that, once the Royal Court had decided the factual issues raised in the contempt proceedings by reference to the criminal standard, it ought then to have revisited exactly the same factual issues by reference to the civil standard for the purpose of the fact find exercise.  In the context of the present costs application, we do not consider it necessary to try resolving that allegation definitively:  suffice it to say for present purposes that it appears to represent an attempt to raise an extremely artificial argument, betraying the Father's mind-set as an adversarial litigant who was determined to say anything possible by way of criticism of the Royal Court's judgment, rather than stepping back and assessing what is in the best interests of his own Children.

31.          For the reason's outlined in paragraphs 29-30 above, we are satisfied that:-

(i)        when the Father lodged the Notice of Appeal, he had no reasonable grounds for believing either that the Appeal was likely to succeed or that pursuing the Appeal was in the best interests of the Children;

(ii)       the Father's decision to lodge the Appeal was prompted by his attitude as an adversarial litigant, consistently looking for ways to harass the Mother through the court process and to try gaining a forensic advantage, rather than making decisions in the interests of the Children;

(iii)      the Father's withdrawal of the Appeal was prompted by his recognition that it would fail, and that it had served its purpose in vacating the hearing listed for 27 November.

32.          For these reasons, we are satisfied that it is appropriate to make a costs order against the Father in this case.

The third issue: amount & timing

Introduction

33.          The third issue (see paragraph 13(iii) above) requires consideration to be given to the question (i) as to the relevant period or periods in respect of which costs should be ordered, (ii) as to the basis on which costs should be ordered, (iii) whether any order should be made for an interim payment on account, and (iv) whether this Court can and should achieve finality in relation to the quantum of the Father's costs liability, or expose the parties to the further delay, cost and disputation that would be entailed in a taxation.

The appropriate period

34.          During the course of oral argument, Advocate Heath for the Father indicated that, if we were minded to make any adverse costs order, she would wish to draw our attention to some correspondence which had passed between the parties' legal representatives "without prejudice save as to costs".  After the close of oral argument on the question of principle as to whether any costs order should be made at all, we indicated to the parties that we were provisionally minded to make an adverse costs order against the Father, at least in respect of the period up to 18 December 2017, and subject to further argument having seen the "without prejudice save as to costs" correspondence.  On that basis, Advocate Heath took us through the relevant correspondence passing between the parties' legal representatives between 7 and 22 January 2018, and invited us to deal separately with (i) the costs incurred in the period up to the withdrawal of the Appeal on 18 December 2017, and (ii) the costs incurred thereafter.

35.          For the purpose of this judgment it is unnecessary to trace the course of the negotiations between the parties' respective legal representatives in any detail.  Suffice it to say that:-

(i)        when the Father withdrew the Appeal, he did not simultaneously make any offer to pay any part of the Mother's costs incurred in the period up to 18 December 2017;

(ii)       at no point during the negotiations did the Father offer to pay any part of the Mother's costs on the indemnity basis;

(iii)      at no point did the Father make any unconditional offer to pay any quantified amount by way of an interim payment on account of costs;

(iv)      on 11 January 2018, Advocate Orchard for the Mother made an offer to settle the dispute over costs on the basis that the Father would pay the Mother's costs on the standard basis and would pay 50% of the claimed costs pending agreement or taxation: that offer was rejected;

(v)       at no stage did the Father make an offer in costs which beat the order we had provisionally indicated that we were minded to make.

36.          For these reasons, and also in light of the conclusions set out in paragraphs 37-42 below, and having carefully considered the full extent of the inter partes correspondence, we do not consider that there is a proper basis for denying the Mother costs in respect of the period after 18 December 2017.

Indemnity costs

37.          The correct approach when deciding whether to award costs on the indemnity basis was explained in C v. P-S [2010] JLR 645, approving the Royal Court's judgment in Pell Frischmann Engineering Ltd v. Bow Valley [2007] JLR 479.  In summary:- (i) an award of indemnity costs is unusual, and as a result there must be something in the case to take it outside the ordinary range; (ii) no attempt should be made to define exhaustively the circumstances in which an award of indemnity costs might properly be made; (iii) in particular, it is not always necessary to prove a want of moral probity; (iv) a useful touchstone is fairness and reasonableness; (v) the purpose of making an award on the indemnity basis is to achieve a fairer result for the receiving party.

38.          Applying that test in the present circumstances, the accumulation of reasons listed in paragraphs 29-31 above are, in our judgment, more than sufficient to demand an award of costs on the indemnity basis, at least in relation to the period up to 18 December 2017.  Furthermore, we do not consider that the costs incurred thereafter should be awarded on the standard basis: all the costs have been incurred in relation to an appeal that was lodged unreasonably, and in addition the matters listed in paragraph 35 above reinforce our view that costs in relation to the period since 18 December should not be awarded on the standard basis.

39.          The Mother also asks for a costs order on the basis of her advocates' full reasonable fees, applying their usual private client rates, rather than the legal aid rates charged to the Respondent.  In our judgment, she is entitled to an order on that basis: it is expressly contemplated both by the Legal Aid Guidelines (at paragraph 2.11.3) and also by the contract of retainer between the Mother and her advocates, and it meets the justice of the case.  However, we will consider separately below the overall quantum of the costs claimed.

Interim payment on account

40.          The Mother seeks an order for an interim payment on account of 60% within 48 hours.  That raises the question (i) whether as a matter of principle this Court can make an order for an interim payment on account and (ii) whether in this case such an order should be made. 

41.          This Court accepted in Crociani v Crociani [2014] (1) JLR 503 that, despite the absence of any provision in the Rules conferring an express power on the Court to make an order for a payment on account of costs before taxation, the Court nevertheless had such a power.  We accept that principle.

42.          As to the exercise of the jurisdiction to make an order for an interim payment on account of costs, the Mother relies on the decision in Marange at paragraph 51, where the court accepted that a winning party who was entitled to costs "ought to get the money to which it is entitled under a costs order as soon as possible" and hence that "a payment on account should be made".  We accept that approach.

43.          As to the amount of any such award, the Mother relies on paragraphs 53-54 of the same judgment in support of the proposition that an order for indemnity costs would not be likely to result in a reduction of more than 10% of the full amount claimed, and accordingly she seeks an order for payment on account of 60% within 48 hours.  Subject to our comments on the overall quantum set out below, we would in principle have been minded to accept that submission, but before reaching a final conclusion we will first deal with the fourth subsidiary issue under this heading.

Finality

44.          Everything we have seen in this case (and in particular the inter partes correspondence earlier this month) suggests that, if an order were to be made for an interim payment on account of costs, and for the final amount of the Mother's costs to be taxed if not agreed, the parties would be incapable of reaching agreement, and the process of taxation would cause further delay, cost and aggravation.  The question therefore arises whether this Court can at this stage achieve finality in relation to the quantum of the Father's liability in costs, rather than making an award for an interim payment followed by taxation. 

45.          Article 16 of the Court of Appeal Law provides as follows:-

"The costs of and incidental to all proceedings in the Court of Appeal under this Part shall be in the discretion of the Court, and the Court shall have full power to determine by whom and to what extent the costs are to be paid."

This is in similar terms to Article 2 of the Civil Procedure (Jersey) Law 1956, which is the provision conferring power on the Royal Court to make costs orders.  That power has been interpreted and exercised by the Royal Court in such a way as to enable it to fix a party's liability in costs summarily, without any need for taxation:  see Jersey Financial Services Commission v. A.P. Black (Jersey) Ltd [2001] JLR 1, and R v. G [2006] JLR Note 20.  There is no reason in principle why the equivalent power which has been conferred on this Court should not be interpreted and exercised accordingly.

46.       It has already been noted in paragraph 41 above that the absence from the legislation of any express power to make an order for an interim payment on account of costs does not prevent the Court from making such an order.  By parity of reasoning, we consider that an order for a summary assessment of costs is another expression of this Court's "full power" under Article 16 "to determine by whom and to what extent the costs are to be paid".  For the avoidance of doubt, we do not consider that this conclusion is precluded by rule 18 of the Court of Appeal Rules,[21] which is describing the basis of a party's entitlement to costs (standard or indemnity costs) not the procedural question whether all costs orders necessarily require taxation.  In Crociani, rule 18 was similarly not interpreted as precluding an order for an interim payment on account of costs, and we do not interpret it as precluding an order for summary assessment either.  Nevertheless, as the Court indicated in Crociani, there would be an advantage in having a legislative review of the Rules in order to clarify the process

47.          For the reasons outlined above, and in light of the stage which this application has reached, the amount of costs at stake, and the fraught state of the proceedings generally, we propose to assess the Mother's costs summarily. 

Quantum

48.          The full amount claimed by the Mother is:- (i) £4,046.50 in respect of the period up to 18 December 2017; (ii) a further £9,884.50 in respect of the period up to 19 January 2018; (iii) a further £4,250 or so up to and including the conclusion of oral argument on 24 January 2018.

49.          Advocate Heath on behalf of the Father made a number of submissions objecting to the bill, partly by reference to points of principle and partly by reference to points of detail.  In particular, she submitted that:- (i) the hourly rate of Advocate Orchard, £340, is unreasonable; (ii) some costs were administrative and should not be allowed; (iii) some costs were incurred in relation to the Royal Court proceedings, not in relation to the Appeal; (iv) excessive time was spent on drafting the Respondent's Contentions and preparing for the hearings in this Court; and (v) time should not be allowed for internal discussions between members of the firm.

50.          We consider that there is some merit in some of these points, but the matter can and should be dealt with summarily without getting too much into the detail.  Overall, our conclusion is driven partly by the submissions we have heard and partly by the test of proportionality.  Broadly, we consider that the costs incurred up to 18 December (roughly £4,000) were not unreasonable, but it was disproportionate thereafter to expend so much more (roughly £14,000) in pursuing that initial element of the costs.  We will accordingly make a summary assessment at 90% of the initial figure but only 70% of the later figure, rounded overall to a total sum of £13,000, plus GST, payable within 21 days.  That being the judgment of the Court, it is unnecessary and inappropriate to make an order for an interim payment on account.

Authorities

Court of Appeal (Civil) Rules 1964.

Court of Appeal (Jersey) Law 1961.

Children (Jersey) Law 2002.

I v. J [2014] JRC 111.

In the matter of B [2011] JRC 045.

Re R (A Minor) (Legal Aid:  Costs) [1997] 2 FLR 95.

Keller v. Keller & Legal Aid Board [1995] 1 FLR 259.

London Borough of Sutton v. Davis (Costs) (№ 2) [1994] 2 FLR 569.

Gojkovic v. Gojkovic (№ 2) [1992] Fam 40).

Re T (Order for Costs) [2005] 2 FLR 681.

In re N (a child) v. A & others [2010] 1 FLR 454.

Flynn v. Reid [2012] JLR 226.

Dick v. Dick (née Naranjo) (6 April 1990).

Marange Investments (Pty) Ltd v. La Générale des Carrières et des Mines SARL [2013] JRC 119A.

C v. P-S [2010] JLR 645.

Pell Frischmann Engineering Ltd v. Bow Valley [2007] JLR 479.

Crociani v Crociani [2014] (1) JLR 503.

Civil Procedure (Jersey) Law 1956.

Financial Services Commission v. A.P. Black (Jersey) Ltd [2001] JLR 1.

R v. G [2006] JLR Note 20.