B.N v D'o.H

• Jurisdiction: Ireland
• Judge: Mr. Justice Binchy
• Judgment Date: 27 October 2023
• Neutral Citation: [2023] IECA 264
• Court: Court of Appeal (Ireland)
• Docket Number: High Court Record No: 2018/15M

In the Matter of the Judicial Separation and Family Law Reform Act 1989, and the Family Law Act, 1995

Between/

BN

Applicant/Respondent

and

DO'H

Respondent/Appellant

[2023] IECA 264

Whelan J.

Faherty J.

Binchy J.

High Court Record No: 2018/15M

THE COURT OF APPEAL — UNAPPROVED

Family law – Misconduct – Costs – Appellant appealing from an order that the appellant pay the respondent 60% of the costs of the proceedings – Whether the appellant had made allegations of rape and sexual assault against the respondent

Facts: The appellant appealed to the Court of Appeal from an order made by the High Court in family law proceedings, whereby the trial judge ordered the appellant to pay the respondent 60% of the costs of the proceedings. That order was made by the trial judge to reflect his conclusion that the appellant (who was the respondent in the court below) had caused the proceedings to be significantly elongated by making very serious false allegations about the conduct of the respondent (the applicant in the court below) both before and during the marriage of the parties. The trial judge concluded that the making of the allegations by the appellant amounted, in all of the circumstances, to gross and obvious misconduct. The trial judge considered that the most appropriate way of addressing that conduct was not to reflect it in the orders he made for the provision of the parties and their children, but rather in the orders that he made in relation to the costs of the proceedings. The appellant submitted that: (1) the trial judge erred in concluding that the appellant had made allegations of rape and sexual assault against the respondent in circumstances where it was the respondent who introduced those matters to the proceedings; (2) the trial judge erred in concluding that the case was elongated and particularly bitter because of the untrue allegations of rape and sexual assault; (3) the trial judge erred in concluding that the allegations of rape and sexual assault added to the costs of the case, and specifically that they added at least 66% to the costs of the proceedings; (4) the trial judge erred in relying upon his incorrect factual assessment that the allegations of rape and sexual assault had added to the costs of the case as the basis for the exercise of his discretion in his order as to costs; (5) there was no evidential basis for the conclusion that the allegations of rape and sexual assault added at least 66% to the costs of the case, and the parties were denied any opportunity to address that approach; and (6) the trial judge was overly influenced in the exercise of his discretion regarding costs by the nature of the allegations which he found were made by the appellant.

Held by Binchy J that the trial judge was correct to conclude that the allegations made by the appellant were in the proceedings because she made them. Binchy J held that the trial judge was also correct to conclude that he had to adjudicate upon their veracity in order to address issues concerning the welfare of the children. Binchy J held that the trial judge was entitled to conclude that the proceedings were elongated unnecessarily as a result of the allegations, and, having found that the appellant made the allegations that she did knowing them to be untrue, for ulterior purposes, that she had engaged in conduct that was gross and obvious. Binchy J held that, having arrived at those conclusions, the trial judge was entitled to reflect them in a costs order, both because of his conclusion that the conduct of the appellant in making the allegation was gross and obvious and because the respondent was partially successful in an element of the proceedings, as provided for in s. 168(2)(d) of the Legal Services Regulation Act 2015. Binchy J held that the conclusion of the trial judge that the allegations had increased the costs of the proceedings by 66% related to the entirety of the proceedings and not just the time spent at trial. Binchy J held that it was a conclusion within “the parameters of that margin of appreciation which the trial judge enjoys” (Nash v DPP [2016] IESC 60) and was not one with which the court should interfere.

Binchy J dismissed the appeal. Since the respondent had been successful in resisting the appeal, Binchy J’s preliminary view was that the respondent was entitled to an order requiring the appellant to pay him the costs incurred by him in doing so.

Appeal dismissed.

NO REDACTION NEEDED

JUDGMENT of Mr. Justice Binchy delivered on the 27 ^th day of October 2023

1 . This is an appeal from an order made by the High Court in family law proceedings, whereby the trial judge ordered the appellant to pay the respondent 60% of the costs of the proceedings. This order was made by the trial judge to reflect his conclusion that the appellant (who was the respondent in the court below) had caused the proceedings to be significantly elongated by making very serious false allegations about the conduct of the respondent (the applicant in the court below) both before and during the marriage of the parties. These allegations, the trial judge concluded, had been advanced by the appellant “…in all probability ….to paint the [respondent] in the worst possible light” and “..to coerce him to capitulate to her demands in respect of the property, the children and all financial and related matters. – or failing that to help secure victory in court” (para.161 of the judgment of the High Court). The trial judge further concluded that the making of the allegations by the appellant amounted, in all of the circumstances, to gross and obvious misconduct. He considered that the most appropriate way of addressing this conduct was not to reflect it in the orders he made for the provision of the parties and their children, but rather in the orders that he made in relation to the costs of the proceedings. He considered, in some detail, the general principles applicable to costs, as well as a number of authorities specifically addressing costs in family law proceedings. At paras. 370–371of his judgment, he stated:

“370. Traditionally, the courts have approached costs in family law proceedings differently to the approach adopted in most other areas of law. There has been a view that costs ought not to be awarded ordinarily in family law proceedings and that view has prevailed for good reason. Apart from the relationship dynamic at play courts are frequently dealing with a struggle to see proper provision made where resources are limited. Courts need to be and have been mindful of the reality that any award of costs against a party may impact on and alter what the court has just earlier determined constitutes proper provision. So there is a balance to be struck in this regard, as an added dimension, when considering awarding costs against a party to family law proceedings. That is not to say that proper provision and costs are not separate and distinct considerations but rather that the decisions on both do involve some overlap insofar as the factors to be considered are concerned.

371. In this case the court is keenly aware of the need for this exercise and has measured its decision on costs in light of the lump sum award, the financial resources of the parties and all of the circumstances.”

2 . At paras. 382–383, the trial judge concluded as follows:

“382. This Court is quite satisfied that the case was elongated and particularly bitter because the [appellant] made untrue allegations of rape and sexual assault against the [respondent]. The untrue allegations of physical abuse of the eldest son would probably not on their own have added significantly to the length of the hearing or the bitterness. Those allegations are in a completely different category and arise in circumstances where both parents have been shown by the evidence to have been unable to deal properly with the behaviour of the eldest son.

383. The open offer or offers of the [appellant] to deal with the [respondent's] concerns about being wrongly accused of rape and sexual assault were wholly inadequate. The [respondent's] requests or demands in this regard were understandable as he did need, and was entitled, to protect his reputation and his character. The additional time taken by these allegations was entirely the fault of the [appellant] because she made those very serious allegations of a criminal nature against the [respondent]. If the untrue allegations of rape and sexual assault did not exist the case would have been considerably more straight forward. Indeed one might well contend that it probably would not have troubled the court at all.”

3 . At para. 387, the trial judge held:

“Although the court considers that the untrue allegations of rape and sexual assault added at least 66% to the costs of this case it will award to the applicant 60% of the costs agreed by the parties or determined by adjudication.”

It is against that determination that the appellant now appeals. I should add that the order of the trial judge includes all reserved costs, so that the appellant is required to discharge 60% of the costs of those matters in respect of which costs were reserved. So far as I can ascertain, there are three motions to which this applies.

Background

4 . The parties were married more than 10 years ago. There are three children of the marriage, A boy, B, a girl, and C, a boy, all of whom are dependent children for the purposes of the proceedings. For a considerable time, both parties have enjoyed well remunerated employment in their chosen careers, in which each of them are highly successful. The marriage of the parties broke down, irretrievably a number of years ago, following which the appellant vacated the family home taking the dependent children of the parties with her to reside with her parents, who reside in close proximity to the family home of the parties.

The proceedings

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