H v. W

FCMC 8332 / 2017

[2023] HKFC 258

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 8332 OF 2017

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RULING
(Variation of order nisi on costs)

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1.The fact finding hearing took place in May 2023 over five days.  On 28 July 2023, I handed down the Ruling on the Respondent Mother’s application in respect of a fact finding hearing concerning three distinct and separate incidents which the Mother alleged took place when the Daughter was in the father’s care. 

2.In the Ruling, I held that in respect of the first two incidents, although they had taken place they did not amount of abuse.  On the third and more serious incident, I held that the evidence provided by the Mother fell significantly short of establishing this allegation and dismissed the Mother’s claims. 

3.This ruling on costs should be read in conjunction with the full Ruling and the findings made therein following the fact finding hearing. 

Issues

4.In the Ruling, I held that since neither party had indicated that they wish to seek their costs, and since it was a children’s matter, a no costs order nisi was made.  The order nisi was to become absolute after 14 days.

5.By way of his summons dated 10 August 2023, the Father seeks to vary the cost order nisi to one where the Mother pays his costs occasioned by the fact finding hearing, “on an indemnity basis, at an amount to be taxed if not agreed, including costs of the adjournment of the trial on care and control, the costs of Rent-A-Mum services, transport fee’s incurred when picking up the child and the Respondent not permitting access, costs in relation to the Respondent[’]s demand that dinner access is to be held outside in a public place and costs associated with the legal fees to defend the indecent assault allegation to [be] payable forthwith”.  The Mother argues that there should be no variation and that the no order on costs should remain.

Legal Principles

6.The Court has very wide discretion on the issue of costs. Order 62 rule 3(2) of the Rules of the High Court (“RHC”) states as follows:

“If the Court in the exercise of its discretion sees fit to make any order as to the costs of or incidental to any proceedings (other than interlocutory proceedings), the Court shall, subject to this Order, order the costs to follow the event, except when it appears to the Court that in the circumstances of the case some other order should be made as to the whole or any part of the costs.

7.The Court in exercising its discretion as to costs shall, if appropriate in the circumstances take into account the conduct of the parties (See Order 62, rule 5(1) RHC).  When evaluating the parties’ conduct, Order 62 rule 5(2) RHC states,

(2)  For the purpose of paragraph (1)(e), the conduct of the parties include

(a)  whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;

(b)  the manner in which a party has pursued or defended his case or a particular allegation or issue;

(c)  whether a claimant who has succeeded in his claim, in whole or in part, exaggerated his claim; and

(d)  conduct before, as well as during, the proceedings”

8.The discretion on costs in the family court, is much wider and the starting point that costs follow the event is more easily displaced than in other civil proceedings.[1]  In particular, the Court of Appeal in TPL v WYY (unreported, CACV 47 and 61/2014) stated that:

“General practice” - no order as to costs

14.1. One starts with the "proposition" or "general practice" (though not a "principle": see London Borough of Sutton v Davis (Costs) No.2 [1994] 2 FLR 569 at p570H) that in applications to do with children, the usual order should be no order as to costs.

14.2. This approach stems from the aspiration that in these applications the court is seeking to find an arrangement which is best for the children, so that the only "winner" is the children, and neither parent should be regarded as the "winner"/"loser", although they had mutually exclusive proposals regarding custody and care and control.

14.3. The rationale is that when a court considers custody and care and control of children, the proceedings are inquisitorial rather than adversarial. In the court's search for the best option available, it does not wish "the spectre of an order for costs to discourage those with a proper interest in the child from participating in the debate. Nor does it wish to reduce the chance of their co-operation around the future life of the child by casting one as the successful party entitled to his costs and another as the unsuccessful party obliged to pay them" (LB of Sutton v Davis (No.2) at pp570H -571C).

14.4. As the English court of appeal observed in R v R (Costs: Child Case) [1997] 2 FLR 95 at p97, there is a "possibility that in effect a costs order will add insult to the injury of having lost in the debate as to what is to happen to the child in the future; it is likely to exacerbate rather than to calm down the existing tensions; and this will not be in the best interests of the child".

14.5. Having said that, this general practice is not a rigid rule. In particular, the court must be careful that this approach to costs should not be abused e.g. in cases where one parent has more means at his disposal than the other who does not qualify for, or prefers not to use, legal aid. The practice should not provide the opportunity for one parent to wear the other down financially by means of multiple interlocutory skirmishes….

Exceptional circumstances

15.1. Accordingly the courts have said that this approach to costs does not apply in exceptional circumstances, such as where the conduct of one party has been reprehensible, or the party's stance has been beyond the band of what is reasonable (LB of Sutton v Davis (No.2) at p571B-C, following Havering LBC v S [1986] 1 FLR 489 and Gojkovic v Gojkovic (No. 2) [1992] Fam 40).

15.2. However, in considering whether the exception applies in a particular case, the court should not be too quick to label a parent's conduct as "unreasonable". As Hale J (now Baroness Hale SCJ) observed in R v R at p98B,  

"The fair point is made that in children cases one must not confuse unreasonableness in relation to the child - because one might say that we are expected to be unreasonable in our attitudes to our children - and unreasonableness in the attitude to the litigation". …..” (emphasis added)

9.The father is asking for his costs to be paid on an indemnity basis, although this is a child related matter.  It is very unusual for a court to make a costs order against a parent in a child related case on an indemnity basis.  The Father has not provided any legal authority in support of seeking costs on an indemnity basis, and from my own research, I am not able to locate any case authority in Hong Kong where the court has seen fit to make a costs order on an indemnity basis in a child related matter.[2]

10.Notwithstanding this, the legal principles set out by HHJ Bebe Chu in LYE and CWW and HWL, (unreported, FCMC 14787/ 2002, 6 May 2005) on the correct approach to indemnity costs in a family case (albeit not child related) are helpful:

“LEGAL PRINCIPLES

3. According to Rule 3 of the Matrimonial Causes Rules, the Rules of the High Court (RHC) shall apply with the necessary modifications to the commencement of matrimonial proceedings in, and to the practice and procedure in matrimonial proceedings pending in the Court of First Instance or in the District Court.

4. Rule 91A of the Matrimonial Causes Rules provides that where the costs of an incidental to any matrimonial proceedings are directed to be taxed, R.H.C. Order 62 shall have effect in relation to the costs of proceedings in the Court of First Instance, and R.D.C. Order 62 shall have effect in relation to the costs of proceedings in the District Court.

5. Order 62 Rule 28(3) in both R.D.C. and in R.H.C. provides that the Court in awarding costs payable to one party by another may in any case in which it thinks fit to do so order or direct that the costs shall be taxed on the common fund basis or on the indemnity basis.

6. Any order for costs is in the discretion of the Court. (see Headnote of Re Engindata Ltd (No. 2) 1993 1 All ER 232).

7. Section 53 of District Court Ordinance Cap. 336 (equivalent to Section 52A of High Court Ordinance Cap. 4) provides that the Court shall have full power to determine by whom and to what extent the costs are to be paid. See also Hong Kong Civil Procedure, 62/2/5:-

“The Court of Appeal in Choy Yee Chun (The Representative of the state of Chan Pui Yiu) v. Bond Star Development Ltd [1997] H.K.L.R.D. 1327, CA reviewed the cases and summarised the law as follows. A taxation of the successful party’s costs on an indemnity basis could properly be ordered where the proceedings were scandalous or vexatious, or had been initiated or prosecuted maliciously, or for an ulterior motive, or in an oppressive manner. Any proceedings instituted or prosecuted in such circumstances as to constitute an affront to the court could properly be the subject of a direction for the taxation of the successful party’s cost on the indemnity basis. However, the circumstances in which an indemnity award might properly be made were not restricted to circumstances beyond the requirement that taxation on an indemnity basis must be “appropriate”. The principle for the award of an order of costs on an indemnity basis applied equally to those who not only instituted proceedings but who defended them. If a plaintiff had been forced to institute proceedings by the defendant whose conduct had been not only hostile in the normal litigious sense, but oppressive and with base ulterior motive, and if the pursuit of a defence constituted conduct which was part of an oppressive game plan, then invocation of the power to award costs on an indemnity basis might well be justified”.

8. I have been referred by the Petitioner’s solicitor, Mr. Ko, to the case of Re Tang Hong Yeun Andy HCB 19585 OF 2003 (at paragraph 18) quoting Choy Yee Chun (The Representative of the estate of Chan Pui Yiu) v Bond Star Development Ltd. [1997] H.K.L.R.D. 1327 CA, where it was held that the discretion was not to be fettered or circumscribed beyond the requirement that taxation on an indemnity basis must be “appropriate”. See also Hong Kong Civil Procedure, 62/App/12.

9. I have also been referred to the Judgment of the Court of Final Appeal in Town Planning Board v Society for Protection of the Harbour Limited FACV No. 14A of 2003, at paragraphs 12, 14, 15, 18 and 23 where the Court of Final Appeal has made the following comments:-

(a) The Court has a broad discretion to determine how costs shall be paid and whether indemnity costs should be ordered (paragraph 12).

(b) The succesful party should show, in order to obtain an order for costs on an indemnity basis, that the case has some “special or unusual feature” (paragraph 15).

(c) In relation to the award of costs generally, it has been accepted, as Chu J pointed out, that while

“the ground [upon which costs are awarded] must be connected with the case. This may extend to any matter relating to the litigation and the parties’ conduct in it, and also to the circumstances leading to the litigation, but no further”.

There is no reason why this statement does not apply with equal force to the exercise of the discretion to award indemnity costs (paragraph 18).

(d) Other factors, such as the reasonableness of the conduct of the parties, may need to be taken into account (paragraph 23).

11.With these guidelines and principles, I now proceed to consider the Father’s application for variation of costs.  The ultimate goal for this Court is what costs order would be fair and just in light of the circumstances. 

Discussion

12.Parents should not be discouraged from raising legitimate concerns about their children, however, there is a fine line which if a parent has crossed, will warrant a cost order against that parent.[3]

13.In the Ruling, I made a number of findings which go to the Mother’s behaviour and conduct of the litigation.  For example,

“[15] ….I found the father to be a credible witness. It is clear that he is trying his best to maintain a healthy father-daughter relationship despite the difficulty he has faced to have access. I accept that the Daughter genuinely loves and enjoys the time she has with the father and his extended family and I would encourage the mother to support this relationship fully. On the other hand, I found the mother had a tendency to exaggerate and to place an irrational overreliance that the Daughter should be completely believed and that the Daughter is not capable of being untruthful.”

14.The Mother has a duty to not simply accept whatever the Daughter said but to make a proper assessment.  In terms of the closet incident, the Mother did not enquire with the Father to find out more information after the first time she heard of it and yet the Mother reached the conclusion that the Daughter was scared and traumatised.  As to the gravity of this incident, I made the finding that:

“[30] I note that this incident is not of a serious nature which warranted being an issue for a fact finding hearing and it is my observation that the mother’s conduct regarding the closet incident to be unreasonable for four reasons:

(1) The mother’s suggestion that the Daughter was placed in the walk-in wardrobe on more than one occasion is made without any supporting evidence. In the Daughter’s interview with the CP she claimed to have only been placed in the walk-in wardrobe on only one occasion.

(2) The mother continued to exaggerate the Daughter’s initial claims about being locked in a closet even after been presented with photographs of the walk-in wardrobe exhibited in the father’s affirmation, and after Ms. Chen had investigated the father’s home in person.

(3) There is no evidence in support that the closet incident happened recently or frequently. In fact, the Daughter told Ms Chen and the police that the closet incident happened two years ago and only once.

(4) The mother has not provided any evidence that the Daughter was placed in any danger by being placed in a walk-in wardrobe or that she was being abused.” (emphasis added)

15.The hair removal incident should have similarly not been pursued at a fact finding hearing, especially since the Father did not deny that the Daughter’s hair was removed (likely by the helper) when she was in his care during Christmas access in 2021 and he gave an undertaking at the earliest opportunity on 19 January 2022 that the pumice stone or “magic cream” would not be used on the Daughter.  The findings on the Mother’s litigation conduct regarding this issue in the Ruling were:

“[33] When the mother was cross-examined on why she did not bring to the father’s attention her concerns about the Daughter’s skin or the hair removal before speaking with the Social Welfare Officer or the paediatrician, the mother’s answer was that she wanted to ensure that she was following the correct procedure. I do not accept that this is a reasonable reaction nor does it explain the delay of three days before the mother brought the Daughter to see the doctor if the Daughter was in fact, suffering from pain as the mother claimed.

[34] I do not accept that a reasonable person would have called the Social Welfare Officer before seeking medical attention for a child in pain, particularly when the child is known to have sensitive skin. I find that the mother has exaggerated the pain suffered by the Daughter arising from the hair removal….

…

[38] As for the “magic cream” neither the mother nor the father knew what the Daughter was referring to. However, the mother persisted in her claim that “magic cream” was used solely on the Daughter’s say so. No evidence was provided by the mother as to possible creams which the Daughter could have been referring to. I, therefore, reject that any “magic cream” or any cream was used to remove the Daughter’s hair on her arms.”

16.As for the third and most serious of the three allegations, I had set out at paragraph 42(1) – 42(8) of the Ruling the reasons why the Mother did not meet the evidentiary threshold.  The Mother’s lack of insight and perspective was noted at paragraph 48 of the Ruling:

“[48] Although I accept that some of these concerns are genuinely held by the mother, she continues to believe them as 100% true, notwithstanding the fact that there is little, if any corroborating evidence to support what the Daughter has said in regard to the most serious allegation. This seems to me a remarkable lack of insight or perspective. In my experience, children do not always tell the truth or they make up stories for a variety of reasons.”

17.The Court is of the view that the Mother did cross the line of what is and what was not acceptable litigation conduct in child related proceedings.  Considering that the Mother expressing at the fact finding her continuing intention to relocate to Singapore with the Daughter once the Decree Absolute was granted and that she had unilaterally suspended the Father’s in-person access with the Daughter from 6 January 2022 until it was resumed on a supervised basis gradually per the Order dated 7 July 2022[4], I concluded in the Ruling that

“[43] … Consequently, it is not difficult to see why the father claims that the mother brought the indecent assault allegation only after she could not obtain an injunction against him.”

18.I wish to remind the parties that “it seems to the court that it is extremely important that parents should not be able to hide behind the fact that the litigation is about their child/ren to excuse extreme litigation tactics and an overly aggressive approach”.[5]

19.Bearing all of this in mind, I am still not persuaded that this is a case where it would be appropriate to award costs on an indemnity basis nor am I persuaded that the Husband is permitted to claim for the transport costs incurred when picking up the child when the Mother had not permitted access, or costs for dinner access held outside in a public place.  

20.The order nisi shall therefore, be varied in that the Mother to be ordered to pay the father’s costs of and occasioned by the child related litigation and the Rent-A-Mum service. The costs shall be taxed on a party and party basis if not agreed.  This order is also subject to only being payable until after the Mother receives her ancillary relief award.

Costs

21.The cost of this application shall follow the event in the normal way in that the Mother shall pay the Father the costs of and arising out of his application dated 10 August 2023 seeking to vary the order nisi that there be no order as to costs.

The Petitioner (father) acting in person

The Respondent (mother) acting in person