F v M

NEUTRAL CITATION NUMBER: [2025] EWFC 138 (B)

THE FAMILY COURT

SITTING AT OXFORD HEARD ON 29TH APRIL 2025

BEFORE HER HONOUR JUDGE OWENS F And M The parties and representation: The Applicant, F, represented by: Ms Caplan, Counsel The First Respondent, M, represented by: Ms Lucas, Counsel This judgment was handed down in private on 29th April 2025. It consists of 5 pages and has been signed and dated by the judge. The Judge has given permission for the judgment (and any of the facts and matters contained in it) to be published on condition that in any report, no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name, current address or location [including school or work place]. In particular the anonymity of the children and the adult members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that these conditions are strictly complied with. Failure to do so will be a contempt of court. For the avoidance of doubt, the strict prohibition on publishing the names and current addresses of the parties and the children will continue to apply where that information has been obtained by using the contents of this judgment to discover information already in the public domain. Costs Judgment Summary Judgment on Principle of Costs There is a consensus in the court that the relevant starting point in family law is that both parties should

pay for their own legal costs. However, the court does have discretion to change this starting position and will do so in exceptional cases where one parties’ litigation conduct has been unreasonable or reprehensible. When the court considers the relevant provisions of the Family procedure rules, the court must also consider 44.2 of the civil procedure rules, namely whether a party has succeeded in whole or part of their case. It is also important to note that fact findings are by no means uncommon, although they are not encouraged as they take up a considerable amount of court resources. Therefore, the court should only devote such time and resources as is necessary and proportionate to further consideration of the hearing. Sadly, it is not uncommon in Family matters to deal with extremely sensitive and serious allegations. In that context there must be an exceptionality in the way in which a party has pursued their case and so the focus of the court is specifically on litigation conduct. It is important to bear in mind that these are Family proceedings and the purpose of making an order for costs is not to make one party feel punished in a way which will thereby reduce cooperation between the parents. The welfare of A remains the paramount concern. The court emphasises that the reasonableness element of the test for costs relates to the conduct of the litigation. Re T is a

good authority which states that the court needs to consider whether the apparent unreasonableness on the part of one party is simply the personality of that party. Re T emphasises that irrational behaviour is commonplace in child disputes and may simply be the personality of the party and there should be a limit to the amount the other parent can unreasonably restrict the actions of another. Mostly cases where a costs order is made relate to where a parent has made unreasonable and unfounded allegations to reduce contact of the child with the other parent. The court in this case is unusually faced with serious allegations which have been proved and yet despite the serious allegations of physical and emotional abuse there has been no attempt to prevent contact. F has conducted himself within this litigation in a way which significantly undermined his credibility. The fact is that no concessions have been made and yet in the course of giving evidence it became apparent that F accepted there had been instances of violence but on occasions other than those alleged by M contributes to this undermining. The court examines what the purpose is of the court determining that a party has behaved reprehensibly such that they are ordered to pay the costs of the other party and concludes that it is not to create a situation of punishment and so reduce cooperation between the parties. The

court must also examine the extent to which the conduct of F has led to M incurring additional costs. The court is conscious that it is not dealing with wasted costs and emphasises that it is not conflating the two. It is not in dispute that despite serious allegations of physical and emotional abuse there was a consensus between both parties that there was no requirement in relation to a fact finding hearing, it was only the report by Cafcass which led to the fact finding hearing being required. The reprehensible conduct of F and pursuing denials in relation to the allegations are to be considered as two different points. There is a complication in this case in that there are two previous orders made by the court in this matter, neither of which contain an order for costs. The authorities in this matter are clear that an order saying no order for costs is not an invitation to reconsider the position. The court again considers what the purpose of the court granting a costs order are; one interpretation is that F’s admission under oath is that there have been instances of violence other than the ones alleged by F show his disingenuous submissions. A reasonable person could and should have given some concessions to the instances of emotional and physical violence, the fact that he couldn’t bring himself to accept this is within the definition of unreasonable conduct in

litigation. In terms of the sexual abuse allegations made by M, F has made no concessions at all. Provisions of civil procedure rules ask us to examine whether it was reasonable of him to contest these allegations. This examination is not limited to just whether it was reasonable for F to contest the allegations, but also the manner in which F contested these allegations. It is not in dispute that the manner in which he sought to defend these allegations was deeply repugnant through the use of her previous sexual history and F’s explicit reliance on her being the victim of childhood sexual abuse. It is unclear to the court how, even in F’s mind, this is linked to her current sexual abuse allegations. It is also clear that somehow in Fs mind there was a connection between M obtaining a possible financial benefit and M pursuing these allegations. Again, it was unclear to the court how these allegations and any financial gain were linked and is indicative of F having defended these allegations in an unreasonable and reprehensible manner. In terms of the application for costs, having weighed the factors, Fs personality, and the way he has defended his allegations it is found that F should pay M’s costs. He has engaged in litigation in a way which is reprehensible, unreasonable and, in the issue of sexual abuse, repugnant. Judgment on Quantum of costs Having determined that F is to

pay the costs of M on principle, the court now considers what the quantum of those costs should be. The court has considered whether it was necessary for a Grade A fee earner to be present for the entirety of the fact finding hearing. The court finds that there was considerable utility in Ms Woods being present due to her existing relationship with M. This also links to the way in which F and Mr Mamood conducted themselves in the fact finding hearing meaning this support was necessary. The court finds that it was reasonable for a fee earner with a relationship with M to be present to ensure evidence was put in a way that acknowledged she was a vulnerable party. The court additionally notes that the Grade A fee earner rate is not itself at the extreme end of rates that the court sees and was only £30 more per hour than the Grade B fee earner rate. The court finds that the argument that it was not necessary to have Ms Woods present is doomed to fail and the argument that the rate claimed is excessive is also not well founded. The court also accepts that different firms have different practices as to charging structure and that time taken and a flat rate charge are both acceptable practices. It was appropriate that correspondence was dealt with, and the time recorded to do this was acceptable, particularly given the unusual procedural history this case has had. None of the work

identified in the schedule of costs was claimed unreasonably or excessively and was work which had to be undertaken. The court also considers the affordability issue in this matter and the ability of F to pay the costs. It is not in dispute the source of these funds as, unusually for a matter such as this, there is an identified pot of money from the residue of proceeds of sale in the Netherlands which is held by M’s solicitors. While divorce proceedings have not yet been finalised, there is an expectation that there will be an approval of a consent order where M will take 55% of the proceeds from the sale and F will take the remaining 45%. It is not in dispute that some of this money, from both F and M, has already been deducted to pay for legal costs in relation to financial remedy proceedings. F’s counsel has argued that to award the sum claimed would jeopardise F’s ability to purchase alternative accommodation and the purpose of the division of assets in financial remedy proceedings is ensuring each party has as much as is available on division to support themselves. The court clarifies that it is not dealing with financial remedy proceedings and therefore does not have information on F’s other assets. The court accepts that awarding M her legal costs will reduce Fs lump sum, however notes that there is a distinct lack of clarity over his future plans. It is apparent that

F is unclear on his plans of where to base himself and what this would mean for his finances. The issue of child welfare has not yet been considered and the court may make an order that A spends time with him and so he will need suitable accommodation. The court however notes that on the other side of the coin, if F does not pay all or part of the costs this will reduce what M has available in terms of providing accommodation for herself and A. The court concludes that on balance it is appropriate for F to pay all of the £40,180 costs of the fact-finding hearing. This is to be paid sooner rather than later and is due immediately, the court notes that a short period must be provided to allow for the funds to be paid. Given that funds are already held by M’s solicitors, a period of 21 days after the consent order is given is allowed for payment. The consent order should make clear that funds are to be paid from the proceeds of sale held by M’s solicitors, wording to this effect should be recorded as a recital. 29th April 2025