Family Division president orders intervenor to pay costs after its submissions failed to assist the court

Sir Andrew McFarlane says decision will not have the chilling effect of discouraging others from intervening in family proceedings

An intervenor that went too far in its submissions in a Family Court case, such that it did not actually assist the court, has been ordered to pay costs.

Sir Andrew McFarlane, president of the Family Division, said the circumstances around the involvement of Association of Clinical Psychologists (ACP) would not have the chilling effect of discouraging other intervenors in family cases.

His ruling in The Mother v The Father [2023] EWHC 2078 (Fam) followed his decision earlier this year in an appeal involving findings of parental alienation against a mother. The appeal was granted solely so the court could look at the practice of instructing unregulated experts in such cases and Sir Andrew gave guidance on the issue in dismissing the appeal.

He also criticised the approach of the ACP, which had been given permission to intervene in the appeal.

The father applied for his costs of the appeal to be paid by the mother or by the ACP. Melanie Gill, the expert whose instruction was at the centre of the appeal, was also an intervenor and sought her costs too.

McFarlane P found that the mother acted unreasonably in appealing because, “without the intervention of the ACP or some other outside source, the reality was that she had no means of making good her claim that Ms Gill was unqualified for the role of expert”.

Having been warned by the father that he would seek costs, and given the order for costs made against her when the application to re-open the fact-finding determination was first rejected, “the mother will have known that, should she fail, there was a real prospect of an application for costs, yet she persisted”.

But the judge said it was neither fair nor proportionate to order her to pay all of the father’s costs given that “the appeal process took off and moved on out of the mother’s direct control”. He ordered that she pay half of his costs on the standard basis, rather than the indemnity basis sought by the father.

The finding of unreasonable conduct and order to pay half of the costs applied to Ms Gill’s application too. “It was entirely reasonable for Ms Gill, whose professional standing was on the line, to apply to intervene in the appeal and to be represented,” McFarlane P held. She accepted the court’s summary assessment of £20,000.

He continued that, while the ACP’s conduct within the appeal was “misguided, ill-conceived and possibly naïve, I do not consider that the association acted out of malice or for some other reprehensible motive”.

The costs test for an intervenor was exceptionality, not reasonableness. “I accept that there is a risk that making an order for costs against an intervenor may have a chilling effect on potential intervenors in other cases.”

But the ACP was not able to substantiate its claim that Ms Gill was unqualified to hold herself out as a ‘psychologist’.

“It should have become clear to the ACP that it could not provide a clear, bright line, answer to the court’s request for clarity on the issue of qualification. At that point the association might simply have acknowledged that that was the case and stepped back.

“Instead, in its second document and during the second day of hearing, the intervenor mounted a direct and detailed critique of the expert.”

A non-party allowed to intervene by reason of its special interests and/or knowledge “has a responsibility to assist the court in respect of the issues before it”, McFarlane P stressed.

“Where an intervenor is found to have acted beyond the remit of the permitted intervention, or acted in contradiction to the court’s direction and/or is found to have acted unreasonably and, in doing so, not to have assisted the court, it is likely to be at risk of an adverse costs order.

“In the circumstances, I do consider that the ACP has conducted itself as an intervenor in a wholly exceptional manner and in way which is most unlikely to be replicated by other bodies who may consider intervening in Family Court proceedings.”

Taking into account the lack of a costs warning and the ACP’s limited financial resources, he ordered it to pay £10,000 to each of the father and Ms Gill.

Chris Barnes (instructed by Beck Fitzgerald ) for the mother. Charles Hale KC (instructed by Thomson Snell & Passmore) for the father. Jessica Lee and Luke Eaton (instructed by TV Edwards) for the expert. Barbara Mills KC (instructed by Dawson Cornwell ) for the ACP.

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15 Nov 2023

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