D.K v P.I.K
| Jurisdiction | Ireland |
| Judge | Ms. Justice Máire Whelan |
| Judgment Date | 24 January 2023 |
| Neutral Citation | [2023] IECA 7 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Appeal Number: 2021/255 |
In the Matter of the Judicial Separation and Family Law Reform Act 1989
and
In the Matter of the Family Law Act 1995
[2023] IECA 7
Edwards J.
Whelan J.
Collins J.
Appeal Number: 2021/255
THE COURT OF APPEAL
Civil
Costs – Remittal – Rehearing – Appellant seeking relocation of children – Whether there should be no order as to costs of the appeal
Facts: The Court of Appeal, on the 28th October, 2022, delivered judgments ([2022] IECA 246) wherein it was determined that the application of the wife for the relocation of the adolescent children of the marriage to a third jurisdiction required to be remitted to the High Court for a hearing and determination of the issue de novo. The Court of Appeal was satisfied in the first instance that the order for costs made in favour of the father by the High Court judge must be set aside in light of the determinations of the Court of Appeal on foot of the appeal. Following delivery of the judgment the panel reflected further on the issue of the proper allocation of the costs of the appeal and indicated to the parties its preliminary view that no order as to costs ought to be made. The parties were afforded time to make written submissions in respect of costs and the appellant wife did so. Her essential contention was that “as the High Court will now have to rule on a matter by way of rehearing, it is submitted that it is appropriate that there would be no Order in respect of the prior High Court hearing as, in essence, that hearing did not result in a determination of the matter in issue”.
Held by Whelan J that the order for costs made in the High Court was to be set aside and the justice of the case warranted that the issue of the costs of the said High Court application be determined by the High Court within the judicial separation proceedings either at the conclusion of any application for leave to relocate the children or at the conclusion of the substantive proceedings in accordance with the settled jurisprudence. She held that the principles in Veolia Water U.K. Plc. v Fingal County Council (No. 2) [2007] 2 IR 81 were not engaged and no adequate evidence had been put before the Court of Appeal to warrant a determination that the court was to approach the exercise of its discretion in respect of costs on the basis that the Veolia principles applied. She held that the litigation was concerned with the welfare and best interests of the children of the family, a matter which was of general public interest to have properly determined. She found that both parties might be said to have caused or contributed to the events which led to the appeal being necessitated in the first place particularly by their failure to engage with the trial judge in a timely and effective manner prior to the meetings taking place to identify and clarify sufficiently the precise purpose and parameters of the proposed meetings with the children. She held that those omissions contributed significantly to the series of events which ultimately necessitated the setting aside of the orders of the High Court and the remittal of the interlocutory application for a rehearing. Of concern to the Court of Appeal was the wholly unrealistic estimation of time identified by the appellant for the appeal hearing and the approach adopted by the appellant in presenting her appeal which caused the hearing to go into a second day. Whelan J held that the issues arising in the interlocutory application had engaged the court in extensive considerations directed towards the welfare of the children in question.
Whelan J held that it was in the interests of justice, fairness and equity that no order as to costs be made in the absence of any evidence that would warrant the making of same and further, although the wife succeeded in having the issue remitted, the application for relocation of the children could not readily be located within a binary “win lose” parameter. Whelan J held that in all the circumstances it was appropriate that there be no order as to costs of the appeal.
No order as to costs of the appeal.
JUDGMENT of Ms. Justice Máire Whelan delivered on the 24th day of January 2023
. The judgments of this court [2022] IECA 246 were delivered on the 28th October, 2022 wherein it was determined that the application of the wife for the relocation of the adolescent children of the marriage to a third jurisdiction required to be remitted to the High Court for a hearing and determination of the issue de novo. The court was satisfied in the first instance that the order for costs made in favour of the father by the High Court judge must be set aside in light of the determinations of this court on foot of the appeal. Following delivery of the judgment the panel reflected further on the issue of the proper allocation of the costs of the appeal and indicated to the parties its preliminary view that in this instance no order as to costs ought to be made. The parties were afforded time to make written submissions in respect of costs and the appellant wife did so.
. The core factors relied upon by the wife in seeking an order for costs of the appeal against the husband included that the substantive decision of the High Court which had refused the wife's application for relocation of the minors to a third country had been set aside by this court and the matter is now remitted to the High Court for a rehearing in respect of that issue. Further, that the costs order granted in favour of the husband by the High Court had also been set aside. It was contended that “ the usual rule that costs should follow the event should apply in relation to the costs of this Honourable Court.” It was further asserted that “as the High Court will now have to rule on the matter by way of rehearing, it is submitted that it is appropriate that there would be no Order in respect of the prior High Court hearing as, in essence, the hearing did not result in a determination of the matter in issue.”
. Reliance was placed on the principle that the starting point is that costs should follow the “event” unless the court considers it appropriate to make a different order. It was asserted that in this appeal there was a “ clear event” and that the wife is entitled to her costs in respect of the hearing of this appeal in all the circumstances and in light of the jurisprudence.
. It was contended in particular that the jurisprudence including the judgment of Clarke J. (as he then was) in Veolia Water U.K. Plc. v Fingal County Council (No. 2) [2007] 2 IR 81 supported an approach whereby an order for costs would be granted in favour of the wife. It was emphasised that “ the consideration of costs in the Veolia case was in the context of complex litigation with interlocutory applications arising which might of themselves be considered “events” in the context of the overall litigation. The within proceedings were not such as had a multiplicity of events, concerning only the single issue of relocation.”
. Reliance was placed on the High Court decision of Simons J. in Student A.B (a Minor) v The Board of Management of a Secondary School [2019] IEHC 453, and the judgment of this court in Chubb European Group SE v The Health Insurance Authority [2020] IECA 183, where Murray J., citing Clarke J. in Veolia with approval, had observed concerning the different scenarios relevant to a determination of the appropriate allocation of costs:
“ 10. As analysed by Clarke J. the first is a case where an ‘event’ can be identified and in which all costs of the case follow that event. This is the default position even where the party who succeeds on the ‘event’ has not prevailed on every issue in the case or succeeded in every argument it has advanced (see Veolia at para. 2.5 and 2.8 and MD at para. 9). For these purposes, Clarke J. related success on the event to the securing of a ‘substantive or procedural entitlement which could not be obtained without the hearing concerned’ (Veolia at para. 2.8).”
. Reliance was also placed on the decision in Godsil v Ireland [2015] IESC 103, (citing Murray J. in Chubb, para. 10) for the proposition that “ as a matter of both fairness and of principle, where a party has had to institute legal proceedings in order to obtain relief, the starting point should be that he recovers all the legal costs in securing that benefit …”.
. It was submitted on behalf of the husband “… that in this instance no order as to costs ought to be made.”
. The proper allocation of costs in the context of family law proceedings calls for an approach that accords due regard to the importance of the family and the rights of children under our constitutional order in cases such as the present where both aspects are engaged.
. Conventionally, as was acknowledged by Clarke J. in D v D [2015] IESC 66, [2016] 2 IR 438 — Denham C.J. concurring — the starting point in family law proceedings is that both parties are to bear their own costs. In the instant case it is demonstrable that both parents are deeply attached to and invested in the children of the marriage and although their respective positions and views are diametrically opposed to one another as to where the best interests and the welfare of the said children may lie, the sincerity with which their respective views are held is not in question.
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