Costs News

08 December 2021
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“Reprehensible conduct” of party in child case sufficient to make costs order

A father’s “reprehensible conduct” towards a child – specifically, poisoning his wife and her parents – and not just his unreasonable conduct of the litigation is grounds for making a costs order, the High Court has ruled.

Mr Justice Williams said this was not conduct at the “blurry” boundary of what displaces the usual no-costs order.

Following the father's application for child arrangements, prohibited steps order and specific issue orders, Williams J held in a fact-finding hearing that the father was responsible for the fatal poisoning of the maternal grandfather and the non-fatal poisoning of the mother and maternal grandmother.

Re RR Costs, s.91(14), Welfare [2021] EWFC 100 concerned his decision on a number of consequential issues, including costs. The judge pressed ahead with the hearing despite the father’s application for an adjournment pending the outcome of his appeal.

The father submitted that this was not a case where a costs order should be made, particularly on the basis that the conduct principally identified as being relevant to the making of a costs order in children cases was litigation conduct.

His counsel argued that, if failing to make admissions of the central allegation were to amount to unreasonable conduct for the purposes of costs, it would drive a coach and horses through the rule as it would apply in almost every case where there were disputes as to behaviour.

Furthermore, he said, the court should not interpret conduct so as to include the behaviour which was the subject of the fact-finding for the same reasons.

Williams J said the authorities were clear that the “reprehensible conduct towards the child and not just unreasonable conduct of the litigation” supported the making of a costs order.

He continued: “Save by some contorted literal approach which said the poisoning was only conduct towards those who consumed it, it is plainly reprehensible conduct and on any common-sense application is plainly reprehensible conduct in respect of the child.

“Indeed, it is conduct at the most reprehensible end of the spectrum. Save for killing the mother or killing a sibling, I am unable to think of anything more reprehensible that a father could do.

“I therefore have no difficulty in placing the father's actions within the bracket of reprehensible conduct.”

This would not drive a coach and horses through the no-order approach as this was not conduct which was “anywhere near the blurred boundary” of whether to displace the no-costs order, the judge said.

“In addition, the father's conduct of the litigation in particular in terms of his tactical approach and the non-admission of facts… illustrate that his approach was far from open, frank and where the child's interests were front and centre.”

Williams J ordered the father to pay the £113,000 sought by the mother.

Ben Mansfield (instructed by Delphine Philip Law) for the applicant father. Simon Miller (instructed by Simon Bruce (Solicitor), Dads House Family Law Clinic) both acting pro bono for the respondent mother. Maria Stanley (Solicitor at Cafcass Legal) on behalf of the child.


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