B.E. v R.E. (Child Abduction: Costs, One Party Legally Aided)

• Jurisdiction: Ireland
• Judge: Ms. Justice Mary Rose Gearty
• Judgment Date: 06 July 2023
• Neutral Citation: [2023] IEHC 413
• Court: High Court
• Docket Number: [2023 No. 3 HLC]

In the Matter of the Child Abduction and Enforcement of Custody Orders Act 1991

and

In the Matter of the Hague Convention on the Civil Aspects of International Child Abduction

and

In the Matter of Alice, A Minor (Child Abduction: Costs, One Party Legally Aided)

Between:

B.E.

Applicant

and

R.E.

Respondent

[2023] IEHC 413

[2023 No. 3 HLC]

THE HIGH COURT

FAMILY LAW

Judgment of Ms. Justice Mary Rose Gearty delivered on the 6 ^th of July, 2023

1. Introduction

1.1 The Applicant mother in this case seeks that the Respondent father pay the costs of the summary proceedings in which she successfully applied for the return of her daughter, Alice, from the Respondent's home in Ireland to Alice's habitual residence in Northern Ireland.

1.2 The Applicant had the benefit of a publicly funded legal aid scheme for her application, while the Respondent retained lawyers privately. The Applicant made an open offer, on the hearing date, to agree to a return order which would be stayed until Alice finished her school year here in Ireland. This was the order made by the Court after a contested, one-day hearing. In those circumstances, the Applicant argues, the Respondent should pay all the costs of the proceedings, including the costs of the Legal Aid Board who provided her legal assistance and representation at the hearing.

1.3 The Applicant relies on S.169 of the Legal Services Regulation Act 2019 [the 2019 Act]. In short, this provides that costs follow the event, or the winner takes it all. If a different costs order is made, according to the Act, a court must set out reasons as to why it has so ruled. It was submitted that there is no basis on which the Respondent can suggest that costs should not follow the event in this case. She adds that the open offer to settle the case should also weigh heavily in the Court's exercise of its discretion as to costs.

1.4 The Respondent argues that in family law proceedings, the most usual order is to make no order as to costs, ensuring that each party pays her own costs. It was submitted that family law cases have always been treated as an exception to the general rule, for a number of reasons including that it is usually impossible to identify which party has succeeded in the case. Family law cases invariably involve a certain amount of compromise and often include directions in relation to custody and access, calculations in relation to maintenance and division of assets and orders which may be revisited when the circumstances of the parties change. In such cases it is certainly difficult, and often impossible, to identify an outright winner.

2. The Relevant Law: Costs

2.1 Order 99 Rule 2(1) of the Rules of the Superior Courts provides: “ The costs of and incidental to every proceeding in the Superior Courts shall be in the discretion of those Courts respectively.” In Veolia Water UK Plc and Others v. Fingal County Council [2006] IEHC 137, Clarke J. explained that if the party who brought proceedings secured an entitlement which could not have been obtained without the hearing concerned, then that party was to be regarded as successful and “ [t]he proceedings… will have been justified by the result.” In other words, where a claimant, by virtue of her success, has shown that her claim did not waste the Court's nor the parties' time nor money, it is reasonable to ‘reward’ her by giving her the costs incurred in bringing her claim.

2.2 Conversely, the defendant who successfully fends off a claim against her has shown that her stance was justified, making it unfair that she should pay any of the costs incurred in meeting that claim. Insofar as only some aspects of a claim are successful, a court will usually reflect this in an order of costs, awarding costs from a certain date or a portion of the costs to reflect the amount of time taken in preparing or presenting the distinct issue in which the result favoured one party. Apart from the justice of the case at hand, most of the relevant cases also refer to the purpose and effect of such rules in discouraging unnecessary, unmeritorious or vexatious litigation.

2.3 These general rules in relation to costs have not been affected by s.169 of the 2019 Act but the various cases outlined above explain the rationale for the section and how the rules had been applied in practice and can help to predict how they will, under the section, continue to be applied. Section 169(1) requires the Court to consider, amongst other issues, the conduct of the parties before and during the proceedings, the question of whether it was reasonable for a party to raise, pursue or contest one or more issues and any settlement offers made.

2.4 The High Court Practice Direction number 51, ‘Family Law Proceedings’, provides, at paragraph 25, that a court in exercising its discretion as to whether or not to make an order for costs shall consider an open offer made to the other party and the general reasonableness of each party's behaviour in the conduct of the litigation in question.

2.5 Section 33(2) of the 1995 Civil Legal Aid Act [the 1995 Act] makes it clear that the fact that a party is legally aided is effectively irrelevant in considering costs. It reads:

“ A court or tribunal shall make an order for costs in a matter in which any of the parties is in receipt of legal aid in like manner and to the like effect as the court or tribunal would otherwise make if no party was in receipt of legal aid and all parties had respectively obtained the services of a solicitor or barrister or both, as appropriate, at their own expense.”

3. Costs in Family Law Proceedings

3.1 Despite what appear to be definitive statements that costs usually follow the event and the 1995 Act provision confirming that legal aid should not affect this position, it is clear that in at least two types of case this rule is almost invariably set aside. One is the criminal prosecution, which does not arise here, and the other is in family law proceedings.

3.2 D. v. D. [2015] IESC 66 is authority for the proposition that the parties should usually bear their own costs in family law proceedings. There, Clarke and MacMenamin JJ pointed out that family law proceedings often involve a decision in which there is no winner. There is, rather, future provision made for the parties or, as they still are, the family. This complicates the task of locating what exact ‘event’ costs are to follow (leading MacMenamin J. in CFA v. O.A. [2015] IESC 52 to adopt the phrase ‘costs follow the outcome’ in childcare proceedings).

3.3 In D., the judgment in M.K. v J.P.K. (No. 3) (Divorce: Currency) [2006] 1 IR 283 was cited with approval. There, McCracken J. described the issues vividly, remarking that:

“ These are family law proceedings in which the court must have regard to the interests of both parties. This is not a case in which damages have been awarded to the applicant for some wrongdoing or injury caused to her by the husband. In family law cases there is a pool of assets, comprising those of both the husband and the wife, which assets are to be used both to make future provision for the spouses and any dependant members of the family and to pay the costs of both parties. There is no question of either party having further assets which could be used to pay costs. In my view, therefore, the general rule does not necessarily apply in family law proceedings … In the circumstances of family law cases the court must look at the effect of the award of costs on both parties.”

3.4 MacMenamin J., in D., emphasised that “...