(Family Division, Roberts J, 15 July 2015)
Costs – Failed committal proceedings – Father claimed Cafcass had failed to implement family assistance order – Whether a costs order should be made in respect of the mother’s solicitors’ costs
A costs order in respect of the mother’s solicitor’s costs was made against the father who unsuccessfully sought to bring committal proceedings for a failure to implement a family assistance order.
Case No: LE15P00507
Neutral Citation Number:  EWHC 2228 (Fam)
IN THE HIGH COURT OF JUSTICE
Birmingham Civil Justice Centre
MRS JUSTICE ROBERTS
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(Re an Application for Committal (No. 2: Costs))
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The Applicant in person supported by his McKenzie friends, Mr Graham and Mr Yalland
Miss Karen Shuman instructed by CAFCASS Legal (Solicitors for the first and second Defendants) and Nelson’s Law (solicitors for the 3rd Defendant)
Hearing dates: 7th, 8th and 9th July 2015
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Mrs Justice Roberts :
 I have already provided the parties with my written judgment in relation to the committal applications which were made by H against the three Defendants. This is my supplemental judgment in relation to costs. In order to save the costs of a further attendance at court, I agreed to deal with costs on the basis of written submissions from the parties. These are now before me, together with a separate letter from H entitled ‘A Father’s Letter to a Judge’. To that letter are appended two separate documents. The first is a letter from Cafcass to the Family Court at Leicester dated 24 June 2015. It comes from Mr Dent, the First Defendant in the committal applications. Attached to it is a letter from the child, B, at the centre of these proceedings which she wrote to the judge who dealt with the original contact application. The second is an extract from a recent statement prepared by the B’s mother during the current proceedings which are ongoing before His Honour Judge Bellamy QC which confirms that, between January and May 2015, Cafcass failed to pass on to the child the letters which had been written to her by her father. It further confirms that Ms McKay, the Second Defendant and the Cafcass officer responsible for implementing the Family Assistance Order to which my judgment refers, had failed to take any active steps – apart from acting as a poste restante - to implement that order after her last contact with the family in December 2014. I shall come back to these documents shortly.
 The application for costs is made by the Third Defendant, Ms Harman, the mother’s solicitor. Miss Shuman does not seek costs on behalf of the First or Second Defendants, the Cafcass officers. In the light of what I know about this case, that seems to me to be a very sensible concession. Whilst the committal applications against the Cafcass officers were fundamentally flawed from their inception for the reasons explained in my judgment, it does appear that H has some ground upon which to stand in voicing his complaints about the manner in which they have handled this case from an administrative perspective.
 Ms Harman was sued in her personal capacity, notwithstanding her professional status as the mother’s legal representative. As such, she has incurred significant legal costs in defending the application. Her costs total £16,909.10, including counsel’s fees, and I am proceeding on the clear basis that this is the sum which she will be required to pay from her personal resources, absent an order against H. In other words, I am proceeding on the basis that she is not being offered any discount or absolution in respect of those costs by the partners in the firm for whom she works in respect of the time they, or other solicitors, have spent working on the case.
 On behalf of H, Mr Yalland, one of his McKenzie friends, submits that whilst he does not dispute the principle of reasonable non-indemnity costs, ‘it is the quantum which is of concern’. I have already commented in my main judgment upon the assistance I had from Mr Yalland and the reasonableness of many of his closing submissions (including appropriate concessions) at the conclusion of the main hearing. I find the same echoes of reasonableness in the submissions he has prepared on H’s behalf in relation to costs. It seemed, and seems, to me inevitable that H cannot avoid a costs liability given the manner in which his applications were framed and the basis upon which they were made. The fact that he appears as a litigant in person is not an answer to an application for costs, provided that there is merit in that application. It may well be, as Mr Yalland concedes, that ‘[H] was clearly very badly advised’. That by itself does not detract from the fact that he now accepts my judgment insofar as it relates to the procedural defects which he acknowledges ‘undermine the Claim fatally’ and the evidence which he accepts was, and is, insufficient to secure a committal of any of these three Defendants.
 In respect of the costs claimed by Ms Harman, the third Defendant, Mr Yalland says this in paragraph 36 of his written submissions :-
‘In respect of D3, whilst (H) accepts the procedural deficiencies of the Application, and accepts he was not represented by D3, and as such she had no obligations toward him, only towards the Court and her client, he does not accept the true position on international matters was accurately reflected to him by D3 (irrespective of whether D3 was obliged to or not), an assertion which his former solicitor has confirmed is the case, and it would appear from the comments of D2, she also had her doubts over.’
 He also points to various contradictions in the costs schedules which have been submitted by Miss Shuman which he says contain elements of double-charging. He queries whether it was appropriate for Ms Harman to charge for her time in court given that she was being sued in her personal capacity. He also points to the cost of the attendance of one of her senior partners throughout the course of the hearing.
 Mr Yalland’s principal thrust in terms of his written submissions is a more general critique of the various areas of ‘maladministration’ on the part of Cafcass about which I heard much during the committal hearing. These I have already referred to in my main judgment. In paragraph 4 of his written submissions on behalf of H, Mr Yalland
‘asks that the Court takes into account the wider public interest issues, particularly in respect of costs relating to D1 and D2, and that since the Judgment was handed, down, two new pieces of evidence have emerged which reiterates the clear failings of case management [sic], and which had it been available to place before the Court, may have caused her Ladyship Judge Roberts to at least raise the issue of Cafcass’ failures’.
 Mr Yalland continues in paragraph 6 of his written submissions,
‘Cafcass are a public body [sic] which has clearly failed in some part of this case. Without that acknowledged failure, this Application would never have been brought. Whilst, with hindsight, a Committal Application was clearly inappropriate (an admission which in the ordinary may count against (H), who was clearly very badly advised), there are in reality few other mechanisms by which Cafcass in general, or non-named individuals specifically, can be held to account for maladministration.’
 Those submissions find further reflection in these paragraphs :
‘10. Cafcass has an exceptionally important and exceptionally difficult job, and it cannot please all the people all the time. But criticisms of Cafcass are legion. They cannot all be vexatious complaints of angry parents unable to get their way. Indeed, Cafcass has been repeatedly criticised in Parliament, in the media, within the legal profession, by the judiciary and in open court.
11. These criticisms need not be rehearsed, but they cannot forever be ignored, and this action was brought solely in the hope that this one failure could lead to Cafcass beginning the process of improvement, and so (H) could, with a clear conscience, hopefully one day look (B) in the eye and say “I did everything I could do”.
12. In short, this Application as misguided, yet well intentioned as it was, was not brought because of the vengeance of (H), but because there are almost no other mechanisms of legitimate complaint which will bring to bear pressure upon Cafcass to ensure it does a better job.’
Law and applicable costs rules / principles
 The Family Procedure Rules 2010 import into the arena of family proceedings the provisions of Part 44 of the Civil Procedure Rules 1998 with some exceptions: see FPR 2010, r 28.2. Whilst the general rule is that orders for costs in proceedings relating to children will be rare (see R v R (Costs: Child Case)  2 FLR 95, CA (approved by the Supreme Court in Re T (Costs: Care Proceedings : Serious Allegations Not Proved)  1 FLR 133), these committal proceedings were a discrete and satellite piece of litigation. The Defendants were not parties to the Part II proceedings brought by H under the Children Act 1989. They do not relate to financial remedy proceedings nor do they arise in connection with, or in, such proceedings where separate costs rules apply.
 Under CPR r 44.2(4), the court is required, in deciding what order (if any) to make, to have regard to all the circumstances including –
(a) the conduct of all the parties;
(b) whether a party has succeeded on part of its case, even if that party has not been wholly successful;
(c) any admissible offer to settle made by a party which is drawn to the court’s attention, and which is not an offer to which costs consequences under Part 36 apply.
 In considering the issue of the conduct of the parties, CPR r 44.2(5) sets out what type of conduct I can look to in these terms :-
(a) conduct before as well as during the proceedings;
(b) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue; and
(c) the manner in which a party has pursued or defended its case or a particular allegation or issue.
 As will be clear from paragraph 16 of my substantive judgment on the committal applications, I took the view that there was no merit whatsoever in any of the three applications. Each was fundamentally flawed in terms of the procedure which H had adopted. I further found that, given the clear objectives which lay at the heart of the applications, as articulated by Mr Graham, they constituted an abuse of the process. To that extent, it cannot be said that H has succeeded on any part of his case. The mechanism which he deployed in order to highlight the systematic deficiencies which he perceived in Cafcass’ administrative processes was completely inappropriate to redress the failings which, on his case, lie at the heart of his complaints. In particular, in this context, he points to the failure of Cafcass to act timeously in respect of their obligation to ‘assess immediately interim contact’ and to determine from the foot of that assessment whether contact was appropriate. He complains that, contrary to the spirit of the order dated 7 November 2013, underpinned as it was by the core assessment which had highlighted the fact that B was already being (or was likely to be) subjected to the negative influence of the maternal family, Cafcass delayed assigned Ms Patterson to the case for two months. That delay appears to have been the result of a ‘breakdown in communication’. When Ms Patterson assumed responsibility for the case, it was a further month before a face to face meeting could be set up with H. Thus, says H, a critical three month window opened during which nothing was done to remedy the potential damage which had already been highlighted in the core assessment prepared by Leicestershire Social Services.
 I have well in mind these complaints. I know not exactly what lay behind the initial two month delay but I can see very clearly how it gave rise to significant frustration and distress in circumstances where H felt that he had by then engaged the professional support of social services in redressing the potentially disastrous consequences of the apparent breakdown on his relationship with B, a relationship which up to that point appeared to be entirely consistent, happy and one which brought much benefit to both child and parent.
 However, I have to look at the merits of the committal applications per se. Whilst I am prepared to accept that H’s personal motives might not have been tainted with a desire for vengeance, I remain concerned that his case may have been used by others as a platform for exploiting a long-running and deep-seated concern held by other disaffected parents who may have found themselves in a similar situation. I have already referred to Mr Graham’s remark in his closing submissions to me that ‘We are not going for Nicola Patterson’.
 The fact of the matter is that these committal applications put at risk the liberty of three individuals who should never have been put in that position. As I have said, the consequences for their professional futures was potentially far-reaching. Whatever H’s motivation in exposing what he perceived to be systematic failures in the organisation, his approach was seriously misguided, as Mr Yalland, on his behalf, now accepts.
 Should that relieve him of any liability in respect of costs?
 In my judgment, the problem he faces is that the First and Second Defendants are not seeking an order for costs. I am not going to speculate as to whether or not that concession on their part is, in part, a reflection of an acknowledgment that matters could have been handled differently within Cafcass. The only application before me for costs is made on behalf of B’s mother’s solicitor, Ms Harman, who has no contractual or other legal relationship or involvement with Cafcass. The application directed towards her was based upon a number of very serious allegations (which included misleading the court) which I have found have no evidential basis. Compounded by the serious procedural defects in the application itself, and on the basis that she has incurred a significant personal liability in defending these proceedings, I have to ask myself why she should not succeed in her present application.
 Miss Shuman relies on the decision of Mr Justice Briggs in Sectorguard plc v Dienne Plc  EWHC 2693 (Ch),  WL 3447921. In that case the court was dealing with a strike out application in relation to committal proceedings which involved a defence based upon each of
(i) no reasonable ground for committal;
(ii) abuse of process; and
(iii) procedural default.
 At paragraphs 45 to 47 of his judgment, Briggs J said this :-
‘45. The concept that the disproportionate pursuit of pointless litigation is an abuse of the process takes on added force in connection with committal applications. Such proceedings are a typical form of satellite litigation, and not infrequently give rise to a risk of the parties’ and the court’s time and resources otherwise than for the purpose of the fair, expeditious and economic determination of the underlying dispute, and therefore contrary to the overriding objective as set out in CPR 1.1. The court’s case management powers are to be exercised so as to give effect to the overriding objective and, by CPR 1.4(2)(h) the court is required to consider whether the likely benefit of taking a particular step justifies the cost of taking it. Furthermore, paragraph 5 of the Contempt Practice Direction makes express reference to the court’s case management powers in the context of applications to strike out committal applications.
46. It has long been recognised that the pursuit of committal proceedings which leads merely to the establishment of a purely technical contempt, rather than something of sufficient gravity to justify the imposition of a serious penalty, may lead to the applicant having to pay the respondent’s costs : see Adam Phones v. Goldschmidt (supra) per Jacob J at 495 to 6, applying Bhimji v. Chatwani  1 All ER 705. Jacob J concluded, by reference to that case:
“Since that judgment the CPR have come into force. Their emphasis on proportionality and on looking at the overall conduct of the parties emphasises the point that applications for committal should not be seen as a way of causing costs when the defendant has honestly tried to obey the court’s order.”
47. Committal proceedings are an appropriate way, albeit as a last resort, of seeking to obtain the compliance by a party with the court’s order (including undertakings contained in orders), and they are also an appropriate means of bringing to the court’s attention serious rather than technical, still less involuntary, breaches of them. In my judgment the court should, in the exercise of its case management powers be astute to detect cases in which contempt proceedings are not being pursued for those legitimate ends. Indications that contempt proceedings are not being so pursued include applications relating to purely technical contempt, applications not directed at the obtaining of compliance with the order in question, and applications which, on the face of the documentary evidence, have no real prospect of success. Committal proceedings of that type are properly to be regarded as an abuse of the process, and the court should lose no time in putting an end to them, so that the parties may concentrate their time and resources on the resolution of the underlying dispute between them.’
 I have to bear in mind that not only were these applications fundamentally flawed in terms of the procedure which should have been adopted; none had any real prospect of success : see paragraphs 52, 63 and 78 of my substantive judgment. In relation, specifically, to the application against the Third Defendant, I have found that H did not come close to crossing the threshold for permission to proceed (paragraph 99) and that none of the very serious allegations which he was making against her was supported by any substantial or credible evidence (footnote to paragraph 93).
 Of significant relevance, in my view, is the open letter which Nelsons, solicitors, wrote to H on 4 June 2014 at a time when the majority of the costs which are the subject of this application had not been incurred.
 At the very outset, that letter (written by Mr Miller, the firm’s managing partner) said, ‘Your committal application is the wrong way to resolve your concerns and we invite you to withdraw the same to save the need for a further unnecessary and costly court hearing. We urge you to take independent legal advice from a qualified source.’
 At that stage, the costs incurred by the Third Defendant were limited to just under £3,300.
 That letter proceeded to spell out in some detail the grounds which would be relied upon in defending the application. They are grounds which have all succeeded. H was warned that the costs of proceedings were likely to be in the region of a further £8,000 and that an application on behalf of Ms Harman would be made at the conclusion of the proceedings for him to pay that sum were she to succeed in her defence. The offer made was to forgo any costs incurred up to that point. Had H sought appropriate legal advice, I have no doubt that he would have been advised to abandon his committal applications. I know not whether he did or did not seek that advice. If he did, and was advised that the proposal was one which he should accept, he has only himself to blame for pushing on to the inevitable conclusion. If he did not seek legal advice on this discrete point, then that criticism cannot be levelled directly at him but it cannot exonerate him from the consequences of having failed, and so fundamentally, in each of his three applications. I am told that H was warned personally by HHJ Bellamy QC when he attended court on 14 May 2015 that he was at risk of paying the costs of these Defendants if his committal applications were unsuccessful. The open written offer which followed that hearing was time-limited but I have not been told of any counter-proposal or application to extend the time of that offer. The next hearing before Roderic Wood J was listed for 8 June 2014. In my judgment, that offer was a sensible, and generous, compromise. It was an offer which should have been accepted.
 At the end of the day, this was a father who wanted nothing more than to restore his relationship with a much loved child. He was, and is, a father who appears to have gone above and beyond what was required of him to maintain that relationship over many years following his separation from her mother both in terms of his commitment to contact and in terms of financial provision for his daughter. For that, he is to be commended. However, I have already remarked upon the manner in which he has allowed supervening events to cloud his judgment, if that judgment has not been overtaken by advice and/or pressure from external sources. It is not for me to speculate on that, and I do not do so. However, to the extent that Ms Harman faces a significant personal financial exposure as a result of these proceedings, such exposure cannot stand in the light of my findings.
 H will pay her costs in an amount to be assessed if not agreed. I decline to assess the costs now since the written submissions I received from Miss Shuman on behalf of the Third Defendant did not address quantum, as opposed to principle, and H has directed a number of criticisms to the sums claimed. The process of assessment itself has costs consequences and I would urge the parties to attempt to agree upon quantum so that a further application can be avoided.
 As to the basis of assessment, Miss Shuman seeks costs on the indemnity basis. In this context, I was referred to the decision of Coulson J in Noorani v Calver  EWHC 592 (QB),  WL 648828. At paragraph 9, his lordship said this :
‘In any dispute about the appropriate basis for the assessment of costs, the court must consider each case on its own facts. If indemnity costs are sought, the court must decide whether there is something in the conduct of the action, or the circumstances of the case in question, which takes it out of the norm in a way which justifies an order for indemnity costs : see Walker LJ in Excelsior Commercial and Industrial Holdings Ltd v Salisbury Hammer Aspden and Johnson  EWCA (Civ) 879. Examples of conduct which has led to such an order for indemnity costs include the use of litigation for ulterior commercial purposes ….; and the making of an unjustified personal attack by one party against the other (see Clark v Associated Newspapers [unreported] 21 September 1998). Furthermore, whilst the pursuit of a weak claim will not usually, on its own, justify an order for indemnity costs, the pursuit of a hopeless claim (or a claim which the party pursuing it should have realised was hopeless) may well lead to such an order …..’.
 In that case, indemnity costs were awarded against the claimant because (i) an open offer was made some two years before the trial of the libel and slander action which would have resulted in exactly the outcome which was eventually achieved at the end of the trial process; and (ii) the judge concluded that the underlying claim contained fundamental flaws and that it should never have been brought at all.
 These are essentially family proceedings, although the committal applications are separate and distinct from the underlying proceedings brought under the Children Act 1989. Indemnity costs are unusual in family proceedings unless the conduct of a litigant is considered in some material respect(s) to be unreasonable or a disproportionate use of the court’s time and resources. I cannot ignore the findings I have made in my substantive judgment in relation to the wholly misconceived basis upon which the proceedings were brought. Similarly, I cannot ignore the fact that the two Defendants who are representatives of, or associated with, the organisation which is the target of H’s principal line of fire are not seeking orders for costs. However, misguided or obdurate H may have been in failing to recognise the gross and obvious deficiencies in the application he brought against Miss Harman, it does not seem fair to me to leave her exposed to personal financial penalties. In these circumstances, I am going to direct that H will pay the costs of the Third Defendant on the indemnity basis.
 I know very little about H’s financial resources, save that they are unlikely to be such as to enable him to meet a costs order without some considerable difficulty. Enforcement is not a matter which I can or should consider in terms of the underlying merits of the application for costs. On behalf of the Third Defendant, Miss Shuman makes an application for a payment on account pursuant to CPR r 44.3(8). I am not making any order in relation to that application at this stage. It can be renewed, if necessary, once there has been agreement or a detailed assessment of the costs in issue. I very much hope that it will be possible now for an overall consensus as to the way forward in terms of both the quantum of the costs to be paid to the Third Defendant and any sum payable on account of those costs. A realistic view, if taken by both sides now, will inevitably save further costs of both assessment and the prospects of enforcement.
 By way of a postscript to this judgment, I want to address my closing remarks to H and to the spirit of the letter and the additional evidence which was sent to me by H, to which I have already referred in paragraph 1 of my ruling in relation to costs.
 I have some sympathy for the predicament in which this father finds himself and the turn of events which has resulted in the fracture in his relationship with B. Notwithstanding that I have found his criticisms of all three Defendants to be without substance in terms of the way in which his case was pleaded (as that case emerged through extraneous documents and the oral submissions of Mr Graham during the hearing), I believe that this is a father whose heart is in the right place and whose fundamental objective is to re-establish his relationship with a child he loves very much. The case is ongoing before HHJ Bellamy QC and I am both hopeful and confident that, in those skilled and experienced judicial hands, a way forward will be found to restore that relationship in a manner and at a pace which is consistent with B’s needs and her best interests. Despite this procedural diversion and the impact which an order for costs will inevitably have upon H personally, I hope that he will continue to commit himself to that ongoing process. I hope, too, that his persistence will eventually pay dividends in terms of his future relationship with B, even if the pace of repairing the relationship is one which may seem to him slower than he considers necessary.