Family judge takes axe to disproportionate costs

The High Court has reduced a claim for costs in a family case by 90% because the sum spent was disproportionate to the simple legal issue raised.

In K v K [2016] EWHC 2002 (Fam), Mr Justice MacDonald said it was “difficult to imagine a more straightforward legal point than the one that arose in this case” – namely that the English court did not have the jurisdiction under the Hague Convention to register a Russian court order relating to a divorce because, at the time the order was made, the convention was not in force between England and Russia.

Overturning a district judge’s decision to register the order after an appeal by the father, he said: “The submission that it required in total £38,813 of costs to inform the mother’s then solicitors in correspondence of this single, irrefutable point, to draft a notice of appeal setting out this single, irrefutable point once the mother had declined to abandon her application and to attend court to argue this single, irrefutable point on appeal is one that, I am afraid, is not realistic and does not reflect the straightforward and indisputable nature of the sole legal point in this matter.”

He said the mother had acted unreasonably even though initially she had issued her application after receiving erroneous advice from her then solicitor, because soon after she was “placed on notice by correspondence from the father that her application plainly had no merit” and was then similarly advised by junior counsel. “Still it took the mother nearly a month to concede. Thereafter, the mother refused to compromise on the issue of costs notwithstanding the position I have outlined.”

Saying it was appropriate to summarily assess the costs, MacDonald J said that “the costs claimed by the father do not bear a reasonable relationship to the level of complexity of the subject litigation and the amount of work reasonably required to conduct and present the father’s case proficiently having regard to all the relevant circumstances”.

Looking at the heads of costs, he reduced the claimed hourly rates – most notably from £550 to £325 for the grade A fee-earner – and allowed one rather than three hours for attendance on the client.

“With respect to attendance on opponents I am likewise not satisfied, given the simple and singular nature of the point in issue, that it was proportionate to expend 13.3 hours on letters and emails out and telephone calls. It was plainly necessary for certain letters to be sent setting out the father’s case before an appeal was issued, chasing the mother for a response and notifying the mother that the appeal had been issued and corresponding in respect of the impending appeal hearing. While the first of these would have taken some time, the remainder would have taken very little. I am prepared to allow one hour for the grade A fee-earner and 0.5 hours for the grade C fee-earner, amounting to £425 as against a claimed sum of £3,997.”

The attendance on others was not particularised and so he disallowed the entire £2,341 claimed, and was similarly unhappy with the lack of detail on the £9,352 claimed for work on documents. “Further, and in any event, given the simple and singular nature of the point in issue, where the letters required to be written to the other side are dealt with elsewhere and where counsel drafted notice of appeal and documents for the hearing, there was in my judgment no requirement to spend significant periods of time working on documentation. I am prepared to allow one hour for the grade A fee-earner, amounting to £325.”

MacDonald J continued that it should have been a grade D fee-earner, rather than grade A, who attended counsel at the hearing, while “in circumstances where the father’s solicitors occupy premises in the immediate vicinity of the court, the figure for travel and waiting is disproportionate. I am prepared to allow 0.5 hours travel and waiting time for the grade D fee-earner, amounting to £62.50 as against a claimed figure of £4,850”.

He also slashed counsel’s fees for advice and the hearing, while emphasising that no criticism of him was intended. The overall figure allowed was therefore £3,737.50.

The judge concluded: “The stringent test of proportionality in relation to costs incurred applies with equal force in family proceedings. It is remarkable that such a significant sum of money has been spent by these two parents [the mother had spent £22,800] arguing over a single question the answer to which was indisputable from the outset.”

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Costs News
Published date
15 Sep 2016

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