Silence And Indemnity Costs In Family Proceedings


This was an appeal by the mother in Children Act proceedings against an order that she do pay £109,394 in costs.

In the course of the proceedings the mother had been given a four year prison sentence in Russia for attempting to bribe a police officer to instigate criminal charges against the father in order to further her own claim on the children.

Despite her incarceration, the mother had continued to pursue an appeal against an order that the father have custody of the children, before finally conceding, leaving only the incidence of costs to be decided.

The judge awarded costs to the father on the indemnity basis and summarily assessed them in the sum of £109,394.

The mother appealed on four grounds, namely:

1) The judge was wrong to award the costs of an earlier hearing when the order was silent as to costs and the general rule is that no party is entitled to costs;

2) The judge was wrong in assessing costs on an indemnity basis;

3) The judge was in error in conducting a summary assessment of costs without the necessary information in order to conduct such an assessment;

4) The judge was wrong in awarding the father the entirety of his costs and in doing so failed appropriately to weigh whether the costs were proportionate or reasonable.

She failed on grounds 1-3:

Ground 1:

“…the judge had the jurisdiction to make an order for costs in respect of the 26 July hearing, and, contrary to the judge’s view, jurisdiction was not dependent on the slip rule (or the so-called Tibbles jurisdiction).”

Ground 2:

“…it was plainly within the ambit of this judge’s discretion to make a costs order on an indemnity basis. The mother’s appeal was … always hopeless.”

Ground 3:

“In my judgment, the judge was entitled, in the exercise of his discretion, to conduct a summary assessment of the costs in this matter.”

However, she succeeded on ground 4:

“…for Ms Eaton QC to have attended this low-level hearing where there was no longer any threat to the welfare of the children, let alone marked at £25,000, was unreasonable, even absent a requirement for and notwithstanding the CPR 44.3(3) presumption in favour of the receiving party where indemnity costs are ordered.”

The judgment provides some helpful observations in relation to costs in family proceedings and in particular the court’s jurisdiction to award costs in respect of an earlier hearing where the order was silent as to costs.