Hampshire County Council v E
| Jurisdiction | Ireland |
| Judge | Ms. Justice Máire Whelan |
| Judgment Date | 24 July 2020 |
| Neutral Citation | [2020] IECA 201 |
| Docket Number | Record Number: 2019/434 |
| Court | Court of Appeal (Ireland) |
| Date | 24 July 2020 |
IN THE MATTER OF CHAPTER III OF COUNCIL REGULATION (EC) 2201/2003
AND IN THE MATTER OF M.D. BORN IN MAY 2012
AND IN THE MATTER OF E.W. BORN IN AUGUST 2014
AND IN THE MATTER OF R.E. BORN IN SEPTEMBER 2017
[2020] IECA 201
Whelan J.
Costello J.
Noonan J.
Record Number: 2019/434
THE COURT OF APPEAL
Costs – Interests of justice – Threshold – Appellants seeking costs – Whether the general rule that “costs follow the event” was applicable
Facts: The appellants are husband and wife. The first appellant is the mother of the three children named in the title of the proceedings. The second appellant is the father of the third-named child and was at all relevant times in loco parentis to the two older children. The appellants unsuccessfully appealed against the judgment of Binchy J made on 30 July 2019 ([2019] IEHC 641) and consequent order of 20 August 2019 which refused to halt the adoption in England of the third child and also refused to order that the three children be brought to Ireland’s jurisdiction where all issues concerning their future welfare could be determined or in the alternative that proceedings in being in England concerning them be transferred to Ireland’s jurisdiction for determination pursuant to Article 15 of the Brussels II bis Regulation. Notwithstanding being unsuccessful in that appeal, the appellants contended that they should be granted their costs or in the alternative no order as to costs be made against them. The respondent, Hampshire County Council, contended that the interests of justice indicated that the general rule that “costs follow the event” was applicable and the court should exercise its discretion to make an order in its favour for all the costs relating and incidental to the appeal. Hampshire further asserted that “the issue of the solicitor showing cause as to why they should not meet all or some of the costs of this appeal should be referred to the Taxing Master for enquiry in accordance with O. 99, r. 7 RSC 1986”.
Held by the Court of Appeal (Whelan J) that it was not satisfied that the appellants met the exacting threshold to warrant an order for costs being made in their favour against Hampshire notwithstanding that Hampshire was entirely successful in resisting the claim both in the High Court and in the Court of Appeal. Whelan J found that the litigation was brought primarily for personal advantage and was predominantly directed towards securing an outcome that would restore the relationship between the appellants and their children; that the issues raised were of special and general public importance was a secondary consideration.
Whelan J held that she would refuse the appellants’ application for costs.
Cost not awarded to appellant.
This judgment addresses the proper allocation of the costs incurred m this appeal in which judgment was delivered on 8 April 2020. The appellants failed to reverse the orders of the High Court refusing the order sought as hereafter considered.
The appellants are husband and wife. The first appellant is the mother of the three children named in the title of the proceedings. The second appellant is the father of the third-named child and was at all relevant times in loco parentis to the two older children. The respondent is a statutory body (“Hampshire”) which at the relevant time was the holder of interim care orders within the jurisdiction of England and Wales in respect of the two older children. On 5 September 2017 the appellants travelled to Ireland with the three children, without the consent of Hampshire, intending on residing here indefinitely.
On 21 September 2017 Hampshire moved an application ex parte, in the High Court and, as was subsequently held by Binchy J. on 12 April 2019 ([2019] IEHC 340), in so doing, failed “to provide Creedon J. with all the information that should have been provided to her in her consideration of the application…”. Hampshire thereby secured from Creedon J. an order for the recognition and enforcement of a return order in respect of the children obtained by Hampshire at the High Court in Portsmouth on 8 September 2017. The appellants were oblivious to the court application. Hampshire elicited the assistance of the Child and Family Agency (“CFA”) to procure interim care orders in respect of the three children. CFA handed over the children to Hampshire on 21 September 2017 whose personnel promptly took the three children back to England. By the time the appellants were appraised of the facts, the three children were no longer in this jurisdiction.
In the instant case the appellants, C.E. and N.E., unsuccessfully appealed against the judgment of Binchy J. made on 30 July 2019 ([2019] IEHC 641) and consequent order of 20 August 2019 which refused to halt the adoption in England of the third child and also refused to order that the three children be brought to this jurisdiction where all issues concerning their future welfare could be determined or in the alternative that proceedings in being in England concerning them be transferred to this jurisdiction for determination pursuant to Article 15 of the Brussels II bis Regulation.
Notwithstanding being unsuccessful in this appeal, the appellants contend that they should be granted their costs or in the alternative no order as to costs be made against them. Hampshire contends that the interests of justice indicate that the general rule that “costs follow the event” is applicable and the court should exercise its discretion to make an order in its favour for all the costs relating and incidental to the appeal. Hampshire further asserted that “the issue of the solicitor showing cause as to why they should not meet all or some of the costs of this appeal should be referred to the Taxing Master for enquiry in accordance with O. 99, r. 7 RSC 1986”.
There has been a protracted and complex litigation history between the parties. On the issue of costs alone the following determinations have been made. On 18 January 2018 Reynolds J. determined that the High Court had no jurisdiction to hear an application to extend time to appeal the order of Creedon J. of 21 September 2017. Reynolds J. ordered that there be no order as to costs.
The appellants appealed the determination of Reynolds J. which appeal led the Court of Appeal to make two references to the Court of Justice of the European Union (“CJEU”) ( Hampshire County Council v. C.E. [2018] IECA 154 and Hampshire County Council v. C.E. [2018] IECA 157). Following the composite judgment of the CJEU on 19 September 2018 ( Hampshire County Council v. C.E. (Joined Cases C-325/18 PPU and C-375/18 PPU), EU:C: 2018:739) addressing the issues raised in both references, this court allowed the appellants' appeal on 28 November 2018 ( Hampshire County Council v. C.E. [2018] IECA 365). The issue of costs was listed for hearing on 12 December 2018 and a written decision of Peart J. was delivered two days later.
On 14 December 2018, this court ordered that there be no order as to costs of the appeal, save that the appellants' costs in respect of the preliminary references made to the CJEU would be costs in the cause. At para. 13 of the written decision, Peart J. clarified that the “cause” was the appeal against the enforcement order which had been remitted to the High Court.
At para. 4 of the written decision, Peart J. explained, with reference to para. 42 of Child and Family Agency v. O.A. [2015] IESC 52, [2015] 2 I.R. 718 that the word “outcome” provided more clarity to the court than “event” in determining the issue of costs. Although the appellants were unsuccessful on the particular issue on which the appeal had been brought, namely whether the High Court had power to extend time to hear an appeal from an enforcement order, they had achieved their desired outcome, namely that their appeal against the order of enforcement be heard by the High Court. However, Peart J. noted, this outcome was based on an amended ground of appeal, flowing from an argument made in the opinion of Advocate General Kokott to the CJEU, which the appellants had failed to raise at first instance. Therefore, Peart J. noted at para. 8, it would be unfair for Hampshire County Council to pay the costs of the appeal. Equally, as the appellants had achieved their desired outcome, it would be unfair to burden them with Hampshire County Council's costs and so no order as to costs was made, save in respect of the costs of the preliminary references to the CJEU.
At para. 11 Peart J. highlighted the factors which required that a different approach be taken in the interest of justice in relation to the costs of the preliminary references:
“In the events that happened this court also made the second reference in which three important questions were raised, including as to whether an injunction might be granted in personam against Hampshire County Council in order to protect the rights of the parents pending the determination of the other issues in these proceedings. That question arose in the light of the refusal by Hampshire County Council to provide an undertaking as sought, and against a background where the children in this case had been removed by Hampshire, with the cooperation of the CFA from this jurisdiction following the making of the order for enforcement by Creedon J. on 21 September 2017 but prior to the parents even having been served with that order, and in circumstances where there can have been no risk of flight by the parents with the children, the latter having already been taken into care by the Child and Family Agency with the parents' consent.”
He also noted at para. 10 that the High Court had refused to make a reference in the terms of...
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