As I have said here before, whilst a court dealing with a children case can order one of the parties to pay the other party’s costs, it is very rare for such an order to be made. The normal rule in children cases is that there will be no order for costs, as it is not usually considered appropriate to penalise a parent with a costs order. After all, costs orders are usually made against the losing party, and there are no winners or losers in children proceedings.
However, sometimes the circumstances are so exceptional that a costs order is justified. One such case was Timokhina v Timokhin, judgment in which was handed down by the Court of Appeal last month. The case concerned an appeal by a mother against a costs order made in the course of litigation concerning the future arrangements for the care of her two children.
Now, the case involved various technicalities surrounding the issue of costs orders. Not wishing to bore the reader, or to provide them with superfluous information, I will concentrate here not on those technicalities, but rather upon the circumstances that gave rise to the costs order.
The facts of the case were as follows. The mother and father are Russian. They relocated from Russia to London in 2014, together with their two children, aged fifteen and seven. We are told that following the breakdown of the marriage, bitter proceedings ensued in relation to the arrangements for the children. In November 2017 the father applied for permission to remove the children permanently to Russia to live with him.
So far so not entirely unusual. However, what followed next coloured the entire case. In April 2018 the mother travelled to Russia, where she was arrested on the 27th of April, after attempting to bribe a police officer to instigate criminal charges against the father, in order to further her claim on the children.
The father’s application proceeded in this country, in the absence of the mother, who wasn’t even allowed by the Russian authorities to take part by way of video link. Unsurprisingly, the English court granted the application, setting the 28th of July 2018 as the date for the children’s return to Russia, which allowed the mother time to appeal whilst they were still in this jurisdiction.
On the 25th of July the mother issued an application for permission to appeal, and also for a stay of the order which allowed the father to remove the children from this country on the 28th of July. The application was listed as a matter of urgency for the following day, although the father’s solicitors were not served with the papers until the afternoon of the 25th. On the 26th the court refused the stay application, and listed the mother’s permission to appeal application for hearing on the 2nd of October.
On the 5th of September the mother pleaded guilty to the charges laid against her in Russia, and she was sentenced to four years imprisonment. She appealed the sentence, but her appeal was dismissed.
On the 6th of September the father’s solicitors wrote to the mother’s solicitors inviting the mother to withdraw her appeal, and asking for confirmation that she had done so by the 11th of September. On the 18th of September the mother’s solicitors replied stating that she would withdraw her appeal, on the basis that there was no order as to costs.
The mother then made a further concession, agreeing to pay the father’s costs on a standard, rather than indemnity, basis. The difference between the two is that the indemnity basis is more generous to the party in whose favour the costs order is made, thereby ensuring that they will recover more, or all, of their costs. The father’s solicitors wanted costs on the indemnity basis.
The father’s solicitors dug their heels in on the costs, and the hearing on the 2nd of October went ahead, to deal just with that issue. At the hearing the mother was represented by counsel charging a fee of £1,500 and the father was represented by leading counsel charging a fee of £25,000, and junior counsel, charging a fee of £12,500.
In the light of the mother’s conduct, in particular her criminal conviction, the court found that the mother’s appeal and pursuit of that appeal were wholly unreasonable, and well within the type of conduct considered to deserve an indemnity order. The mother was therefore ordered to pay the father’s costs, in the sum of £109,394, to include the father’s barristers’ fees for the hearing.
The mother appealed, to the Court of Appeal. As I have indicated, I won’t go into the details, but her appeal was dismissed, save that the husband’s barristers’ fees were found to be unreasonable. Leading counsel was unnecessary, and her fees were disallowed (she did not actually appear at the hearing), and the junior counsel’s fees were halved. The total costs payable by the mother were therefore reduced by £31,250, to £78,144.
Still, a warning to anyone tempted to take matters into their own hands like the mother!
If you wish you can read the full judgment here.