Trowell J. Application for a lump sum for litigation costs under Schedule 1 to the Children Act 1989 in relation to proceedings under s 8 of the Children Act 1989.

Facts

The parties separated in 2018 when living outside of the UK. Since then, there have been a series of legal proceedings including Hague return proceedings, relocation proceedings, section 8 proceedings and Schedule 1 proceedings, all regarding the party’s child. At this hearing, mother sought a fund of £283,958 to meet costs up to and including a final hearing in an application under s 8 of the Children Act 1989; the costs of this hearing at £48,347; and a sum of £50,000 to deal with future applications. Father sought the costs of this hearing at £51,940 and no order made on this application.

Legal principles

The relevant case is Cobb J’s decision in Re Z (Schedule 1: legal costs funding order, interim financial provision) [2020] EWFC 801 and the parallel principles set out in s 22ZA of the Matrimonial Causes Act 1973 and developed by Mostyn J in Rubin v Rubin [2014] 2 FLR 1018.

The judge identified the following as relevant to this case:

1. Can the mother reasonably pay for these proceedings herself?
2. Should this matter simply be referred to some form of mediation, for which the father would pay?
3. And linked to that, are the issues to be dealt with in the mother's section 8 application requiring the court's attention at all?
4. Further, if some sum needs to be paid:
   1. Should it only be up to a DRA?
   2. Should it exclude costs already incurred?
   3. Should it otherwise be reduced?

Judgment

Trowell J decided:

1. Mother could not reasonably pay for the proceedings herself because, when looking at Rubin, the court would be unlikely to expect an applicant to sell or charge her home or deplete a modest fund of savings. As this is a Schedule 1 case, the judge considered that once the child grows up, mother would have to leave her current home, no longer receive maintenance, and would need to start providing for herself again after years of reduced earnings. In relation to the £300,000 of savings, the judge decided that it was not reasonable to expect the mother to exhaust this fund to meet her litigation costs as it was modest in the context of the father’s resources and modest in the context of the £5.5m that had been spent on costs because of the father's approach to litigation. The judge thought it appropriate for mother to retain some savings to allow her to have some funds of her own.
2. Considering mediation, legal costs would be incurred in any event as the party’s legal teams would need to be present given the harm mother has experienced by father, and father’s proposal for mediation did not include paying mother’s legal costs.
3. Mother’s application did require the court’s attention as the variations mother sought may not be fundamental but are unlikely to be agreed.
4. Looking at the sum to be paid:
   1. After deducting the double counted costs, the judge broke the costs down in the same way as in an LSPO in financial remedy proceedings: a sum up to DRA and a further provision for further hearing thereafter. However, as there was no schedule of costs where the costs were broken down in this way, the judge used rough and ready reckoning. He noted that in both cases there is also the possibility of seeking a costs order to remedy the situation at the end of the case.
   2. The costs mother had already paid were deemed to be unable to form part of her claim because her payment of them evidenced that she was able to pay them. In relation to the unpaid bills, the judge decided this is a matter to be dealt with when the reserved costs are considered.
   3. The judge deducted £5,000 for an independent social worker as this has not yet been ordered and was potentially unnecessary.

The judge did not deal with costs of this application as there may be without prejudice offers to consider after the judgment is given.

The judge adjourned the war chest argument for £50,000 on the basis that it was not urgent as the application had only been brought at short notice to allow costs to be met in relation to the applications in the section 8 Children Act application.

At the end of the judgment, Trowell J felt it was ‘necessary to pause and reflect on all sides of this case’. He said that around £100,000 has been spent on this hearing alone and warned them: ‘Do not let this dispute become any bigger.’