HHJ Hess.

Background

H and W divorced in 2013 following a 14-year marriage. H had maintained a successful career working in business finance. At the time of the initial proceedings in 2013, H was still owed significant sums from his previous employment with C Partners funds, and in 2014 began working at D Group. In 2015, the parties agreed a consent order which provided, inter alia, for joint lives spousal periodical payments and child periodical payments.

In 2016, W issued an application pursuant to Schedule 1 seeking additional financial support for the children. No progress was made and on 17 May 2018 DJ Duddridge found W lacked litigation capacity and invited the OS to act as litigation friend. W failed to release the necessary funds to meet the OS’s fees, and the application was adjourned generally with liberty to restore on 11 October 2018.

H lost his job with D Group in June 2019, following a fraud scandal. Whilst H was not directly implicated, he had struggled to gain meaningful employment since and had suffered from mental health difficulties as a result. In February 2020, he applied for a variation/discharge of the periodical payments owing to a change in his financial circumstances.

The Proceedings

Delays were occasioned by W throughout the course of the proceedings with no progress made until the matter came before HHJ Hess for the first time in October 2022, more than two years after the application was issued. At the hearing, both parties were represented by counsel. The court accepted W’s evidence that once again she lacked litigation capacity and appointed Dr X, who had accompanied her to the hearing, as her litigation friend subject to the usual undertakings as to costs (FPR 15.4).

Further hearings took place on 27 January and 16 March 2023, with both parties represented. In March, a final hearing was listed w/c 11 September 2023 for five days, subsequently being vacated following submissions from W’s counsel as to his availability and the matter was set down for final hearing w/c 23 October 2023.

Upon receiving bundles in early October, W’s counsel confirmed he was no longer instructed in the matter. Dr X, W’s litigation friend, was aware of this as early as 17 April 2023, the same being reaffirmed by counsel’s clerk on 20 June 2023. Despite this, Dr X had taken no steps to secure alternative representation or to seek an adjournment. Whilst Dr X had produced evidence that he was suffering from depression and signed off from work, the court did not consider this provided adequate explanation for his failure to act thus leaving W lacking litigation capacity and without representation. Dr X failed to attend day 1 of the final hearing, and formally applied to be discharged as litigation friend. H sought to continue the final hearing.

Held

HHJ Hess determined he could not continue the final hearing, but would instead proceed on an interim basis, varying the periodical payments and adjourning all remaining applications generally with liberty to restore.

As to costs, HHJ Hess proposed to leave the substantive matter as to costs to any future final hearing, noting H had expended £276,256 throughout the litigation. However, H sought wasted costs following the abandonment of the final hearing and referred the court to FPR Part 15 and Baker v Confiance Limited [2020] EWCA Civ 112 (which summarises the law as to costs against litigation friends). H submitted the costs should be apportioned equally between W and Dr X.

HHJ Hess emailed Dr X to enable him opportunity to respond to the application for costs against him. Whilst Dr X did not attend the hearing on 25 October 2023 to determine the application, owing to ill health, he responded the same day by email. Accordingly, the court deeming Dr X having had proper opportunity to answer the application against him, the court determined:

(i) The starting point is no order as to costs, however pursuant to FPR 28.3(7) the court retains a discretion to award costs; and

(ii) Barker v Confiance Limited [2020] EWCA Civ 112 affirms the court can make an order against a litigation friend, whether pursuant to the undertaking or s 51 of the Senior Courts Act, where in all the circumstances it is just to do so.

The court held Dr X should pay the totality of the costs amounting to £42,128.79 within 14 days having willingly taken the role of litigation friend and failing to discharge his duties. That he had been unwell did not excuse or explain his conduct and accordingly he could not escape the consequences.