Read the full judgment text of FCMC 9098/2018 on BabelCite. This Family Court judgment was delivered on 21 May 2021 before Her Honour Judge Grace Chan.
Costs – Variation of costs order nisi – Discretion – Conduct of parties – Recusal application – Costs follow the event – District Court – Matrimonial Causes – Acting in person – Re Elgindata Ltd (No 2) – Order 62 rule 3 – CAMP 255/2020 – Application rejected – Costs order nisi made absolute – Husband to bear Wife's costs. This decision concerns an application by the Respondent husband to vary a costs order nisi made on 10 March 2021 following the refusal of his recusal application. The Respondent argued that the Petitioner wife breached the Consent Order dated 4 July 2019 regarding joint custody and access, necessitating his recusal application and causing inordinate court time and stratospheric legal costs. He sought an order that the wife bear his costs or that there be no order as to costs. The Court held that costs are within the discretion of the court and generally follow the event, with the unsuccessful party bearing the costs of the successful party unless a different approach is warranted by the facts. The Court rejected the application for variation, finding that the husband was the losing party of his recusal application as all 13 grounds of alleged apparent bias were rejected. Regarding the allegation of breach of the Consent Order, the Court noted there had been no contempt application or findings against the wife, and the Court of Appeal had previously indicated the daughters refused to meet the husband. Furthermore, the Court of Appeal's Vice President had commented that evidence was insufficient to establish deliberate non-compliance by the wife. The Court also observed that the husband filed 44 summonses since the Consent Order, taking up an extraordinary amount of court time, whereas the wife made minimal applications. Additionally, the parties had been acting in person since the end of 2019, rendering the allegation of stratospheric legal costs less relevant. The Court concluded that no other reasons existed to adopt a different approach on costs and made the costs order nisi absolute. The husband was ordered to bear the wife's costs of this application to be taxed if not agreed. The decision was made on 21 May 2021 by Her Honour Judge Grace Chan in Chambers via paper disposal. The starting point for discussion on legal principles on costs are set out in the often quoted English authority of Re Elgindata Ltd (No 2) [1993] 1 All ER 232 at 237f-g, which can be summarised in the following: costs are in the discretion of the court; they should follow the event, except when it appears to the court that in the circumstances of the case some other order should be made; increase in the length or costs of the proceedings he may be deprived of the whole or a part of his costs; where the successful party raises issues or makes allegations improperly or unreasonably, the court may not only deprive him of his costs but order him to pay the whole or a part of the unsuccessful party's costs. In post-CJR era, the general rule on costs is: the starting point is that the unsuccessful party will have to bear the costs of the successful party/parties, unless the former can show that a different approach on costs should be adopted on the facts of the case. There cannot be any dispute that costs are within the discretion of the court which shall have full powers to determine by whom and to what extent the costs are to be paid (See: Order 62 rule 3 of the Rules of the High Court). In so far as matrimonial proceedings are concerned, it is said that the family court judges have even wider discretion on costs. The Court considered the 94th affidavit of the husband, as well as his written submission. The husband submits that the wife is in contempt of the court by breaching the Consent Order. For example, she has failed to deliver the daughters to see him, or to allow them to him to take the daughters to visit the paternal grandparents overseas. However, it is pertinent to say that there has not been any contempt application or proceedings taken out so far, not alone any findings of contempt and/or breach of the Consent Order on the part of the wife. Rather, our Court of Appeal has repeatedly noted in their various judgment/decision of this case that the daughters have refused to meet the husband. Further, in her recent decision on the husband's application to vary a costs order nisi made on 22 February 2021, Kwan VP commented that the available evidence is quite simply insufficient to establish that any failure to comply with Consent Order was caused by any deliberate act of the wife. As to his allegation on stratospheric legal costs, all this court needs to point out is that the parties have been acting in person since about the end of 2019. The Court does not agree that the recusal application of the husband is a children matter by its nature. Besides, this argument does not sit well with his recusal application that I should not continue to adjudicate on the ancillary relief of this case. Due to the matters aforesaid, the Court cannot find any other reasons that a different approach on costs should be adopted in this case. The costs should follow the event. The Court therefore makes absolute the costs order nisi of 10 March 2021, and order that the husband shall bear the wife's costs of this application to be taxed if not agreed.
Legal issues: Variation of costs order nisi
Outcome: Application for variation of costs order nisi rejected; costs order nisi made absolute.
Cites 2 cases