Idc v. Ssa

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 158 OF 2011

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BETWEEN

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DECISION ON COSTS

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1.On 22^nd January 2013 I delivered a judgment on the Applicant Mother’s application for custody and maintenance for her child Z under section 10 of Guardianship of Minor Ordinance, Cap 13 (GMP) after a 6 days hearing, of which all but perhaps only the morning of the first day were spent on her claims for financial provision for Z, with an order granting custody to her jointly with the Respondent Father with care and control to her and certain defined access to him, and for him on certain undertakings to pay her a total sum of HK$118,000 per month for Z until she reaches 18 or ceases full-time tertiary education whichever is later.

2.The Mother now seeks an order for the Father to bear all her costs of which I understand to be in excess of HK$4.2 million, while the Father, who has incurred more than HK$5.6 million on his own legal costs, argues that the proper decision should be no order as to costs. Whichever way my decision goes, the fact that the parties have incurred close to HK$10 million in combined legal costs seems to me wholly unjustifiable and disproportional to the issues before the court which, apart from some relatively minor ones in respect of the Father’s access entitlement, were essentially over the reasonable needs of Z barely 2 years old at the beginning of the application, and sadly reveals again what is terribly wrong with the way such matters are being litigated in this jurisdiction, about which no doubt I will have more to say later in this decision.             

3.Ms Irving, counsel for the Mother, argues that while neither party was the outright winner in the judgment, this is a case where an order for cost in the Mother’s favour is warranted given the fact that she was obliged to bring these proceedings and to come to court for the order for financial provision, and that there is a vast disparity in the means of the parties, with the Father taking the millionaire’s defence able to meet the highest claim of the Mother, who on the other hand has been unable to pay her legal costs for proceedings that she was obliged to take to maintain her child.

4.Mr Coleman for the Father on the other hand submits that there are strong arguments that the Father is properly to be regarded as having succeeded in the litigation due to the Mother’s unreasonably high demands as well as unreasonable litigation conduct, but that he is prepared to accept that no order as to costs is the practical correct order to make in this case, and in particular taking into account of his earlier voluntary payment of HK$750,000 provided for the Mother to meet at least her counsel’s fees for the trial.

5.Before going into more details of the parties’ respective arguments and their merits, however, it would be relevant to first give a bit more factual background of the case leading to my said judgment, as well as the applicable principles on the question of costs in particularly in so-called children cases, of which this is one.

Background

6.The full details can be found in my said judgment, and I do not propose to repeat them here, save for the following which are relevant to the matter now before me.

7.The parties started to cohabite in May 2006 at the Father’s apartment in Convention Plaza together with the Mother’s elder daughter N born from her previous marriage, and Z born during the cohabitation on 8^th March 2009, in what was described in my judgment a high standard of lifestyle and living, and during which the Mother and Z were wholly dependent on the Father, and to certain extent N was as well.

8.The cohabitation ceased in August 2010 when the Mother moved into another apartment at Convention Plaza with the children arranged by the Father who continued to support them as the parties remained on amicable term until an incident in May 2011 which involved the police, and in July 2011 the Mother moved to her current apartment at Bel-Air with the children. Thereafter the Father stopped maintaining the Mother or N altogether, and paid the Mother HK$67,000 per month being HK$20,000 for Z and HK$47,000 towards the monthly rental of her Bel-Air apartment which stood at HK$76,000 at that time. He also cancelled her credit card or the use of his car or driver.

9.On 4^th July 2011 the Mother launched these proceedings for custody care and control of Z and for financial provision for her including lump sum and periodical payment as well as interim maintenance at the rate of not less than HK$180,000 per month. By the time of the trial in September 2012, the Mother had quantified her claims for Z as follows:

(a)  a lump sum of HK$32 million for purchasing accommodation;

(b)another sum of HK$700,000 for decoration and furnishing;

(c)  a further sum of HK$500,000 for purchasing a Mercedes Benz;

(d)a periodical payment of HK$174,652 per month being HK$85,250 for general household expenses, HK$13,884 for Z’s personal expenses, and HK$75,518 for the Mother’s personal expenses as well as for N;

(e)  and for the Father to continue to be separately responsible for Z’s school fees and other educational expenses as well as her insurance premium.          

10.These claims of the Mother for lump sums were rejected by the Father for want of jurisdiction under the said Ordinance, who also found her various proposed figures for the periodical payment for Z excessive, unnecessary or unreasonable, and counter-proposed a monthly sum of about HK$90,000 on the basis that her then boyfriend was not residing with her, plus various provisions for Z’s holidays expenses and additional extra-curricular activities. He also proposed to pay, and did pay HK$750,000 as contribution towards the Mother’s costs of her application.

11.As referred to above, after a 6 days trial I rejected the Mother’s claims for various lump sums but awarded her a monthly sum of HK$118,000 being HK$80,000 for rent and utilities, HK$13,000 for Z’s personal expenses, and HK$25,000 for the Mother’s carer allowance, on the basis that the Father shall continue to be directly responsible for Z’s school fees, extra-curricular activities, medical insurance and holiday expenses. I also reserved the question of costs, which is the matter now before me. These being the relevant factual background, I shall next turn to the applicable principles of which it does not seem seriously controversial between the parties.          

Applicable Principles

12.The general principles in civil litigations are derived from the English case of In re Elgindata Ltd (No.2) [1992] 1 WLR 1207, and have since been adopted by our courts, are as follows:

(a)  Costs are in the court’s discretion;

(b)They should follow the event excepts when it appears that in the circumstances of the case some other order should be made;

(c)  The general rule does not cease to apply simply because the successful party raises issues or makes allegations on which he fails, but where that has caused a significant increase in the length or cost of the proceedings he may be deprived of the whole or part of his costs;

(d)Where the successful party raises issues or makes allegations improperly or unreasonably, the court may not only deprive him of his costs but may order him to pay the whole or part of the unsuccessful party’s costs.

13.While these principles apply equally in contested family proceedings, they may be displaced more easily in the Family Court, but the starting point is still that costs prima facie follows the event, as Butler-Sloss LJ, as she then was, said in Gojkovic v Gojkovic [1992] Fam 40 at 54:

“That starting point, in my judgment, is that costs prima facie follow the event (see per Cumming-Bruce LJ in Singer (formerly Sharegin) v Sharegin [1984] FLR 114, 119) but may be displaced much more easily than, and in circumstances which would not apply, in other Divisions of the High Court. One important example is, as the judge pointed out, that it is unusual to order costs in children cases. In applications for financial relief the applicant (usually the wife) has to make the application in order to obtain an order by consent; and if money is available and in the absence of special circumstances, such an agreement would usually include the applicant’s costs of the application. If the application is contested and the applicant succeeds, in practice in the Divorce Registries around the country where most ancillary relief applications are tried, if there is money available and no special factors, the applicant spouse is prima facie entitled to, and likely to obtain, an order for costs against the respondent. The behaviour of one party, such as in material non-disclosure of documents, will be a material factor in the exercise of the court’s discretion in making a decision as to who pays the costs.”

14.In cases relating to children, and in particularly over their custody and access arrangements, however, the proposition from case-law seems to be that it is unusual to order costs against a party, according to Rayden and Jackson on Divorce and Family Matters, 18th edition, in Chap 52.21:

“A number of reasons are advanced in the case-law for the practice of no order for costs in children cases. In all family proceedings, an order for costs inevitably diminishes the funds available to meet the needs of the family. Proceedings to determine the future of a child are partly inquisitorial and the focus is the best interests of the child. The court does not wish the prospects of a costs order to discourage those with a proper interest from participating reasonably in the proceedings and debate. An order for costs may exacerbate tensions between parents and diminish the likelihood of future co-operation between them, to the disadvantage of the welfare of the child.”

15.The court however does retain the discretion to award costs in suitable cases, and in Keller v Keller and the Legal Aid Board [1995] CA, 1 FLR 259, Wilson J examined how such discretion should be exercised, starting at p264C:

“What general considerations, if any, guide the exercise of the court’s discretion in deciding whether to make an order for costs in proceedings relating to children? In Gojkovic v Gojkovic (No.2) [1992] Fam 40 at p57C Butler-Sloss LJ said:

‘It is unusual to order costs in children cases.’

And at p60C she said:

‘The concept … of no order for costs where both parents have been reasonable in their approach to the dispute is not, in my judgment, one of general application in the Family Division, save in children cases.’

In London Borough of Sutton v Davis (Costs)(No.2) [1994] 2 FLR 569 at pp 570H – 571B, I sought to explain the reasons for the proposition that orders for costs in children cases are unusual. With diffidence, I repeat what I then said:

‘Where the debate surrounds the future of a child, the proceedings are partly inquisitorial and the aspiration is that in their outcome the child is the winner and indeed the only winner. The court 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. The proposition applies in its fullest form to proceedings between parents and other relations; but it also applies to proceedings to which a local authority are a party.’

The practice of making no order as to costs in children cases seems to have grown steadily during the last 30 years, in the vacuum created by the demise of the principle that the costs of a wife, even if unsuccessful, should ordinarily be met by the husband. As early as 1965, in Re B (Infants) [1965] 1 WLR 946 at 948D, concern was expressed that no order for security of costs should be made which would prevent a parent from putting his views before the court. And as early as 1968, in B(M) v B(R) [1968] 1 WLR 1182 at p 1185H, this court suggested that it would have been wrong to make an order for costs because it would exacerbate feelings between the parents, to the ultimate detriment of the child. Even by 1982, however, the practice was still very fluid. In Re G (Official Solicitor’s Costs) [1982] 3 FLR 340 at p 345B Ormrod LJ said:

‘Where the proceedings are between the parents, both of whom are acting bona fide in the interests of the child, it is not uncommon to make no order as to costs of the proceedings.’

These words are less firm than the recent observations of Butler-Sloss LJ in Gojkovic (above) to which I have already referred.

No one suggests that the court’s discretion in respect of costs under s 51(1) of the Supreme Court Act 1981 has become emasculated in children cases. The position is only that in most such cases, indeed in ordinary cases, the proper weighing of the factors in the exercise of the discretion is likely to lead to the choice of no order inter parties. Where, for example, the conduct of a party has been reprehensible or his stance in the litigation has been beyond the band of what is reasonable, an order for costs might well be made against him. Equally a marked disparity in wealth, such that, for example, the wife’s costs would bear harshly upon her economy but could be discharged by the husband without significant impact upon his economy, might give rise to an order against him.”  

16.Neill LJ sitting in the same Court of Appeal concurred at p267H:

“In the last decade, however, it has become the general practice in proceedings relating to the custody and care and control of children to make no order as to costs of the proceedings except in exceptional circumstances. In London Borough of Sutton v Davis (Costs) (No.2) [1994] 2 FLR 569 at p570H Wilson J threw some useful light on the reasons for the present practice, the existence of which was recognised in this court by Butler-Sloss LJ in Gojkovic v Gojkovic (No.2) [1992] Fam 40 at 57C.

The court of course retains the jurisdiction and a discretion to award costs in suitable cases. It is unnecessary and undesirable to try to limit or place into rigid categories the cases which a court might regard as suitable for such an award, but examples would be likely to include cases where one of the parties had been guilty of unreasonable conduct or where there was such a disparity between the means of the parties that a specific order was justified.”

17.These principles have been applied and adopted by our courts in cases involving children, as in H v H [2002] CACV 42/2002, HKEC 1123 where Rogers VP said in the Court of Appeal at para 19:

“ … It would seem that this approach has been followed in respect of appeals to the Court of Appeal. Whilst different considerations may apply to appeals because the parties have had the benefit of ‘one day in court’ and thus costs can be unnecessarily incurred, I consider that unless it could be said that an appeal should never have been brought then the same principles would be applicable. Indeed, the argument on behalf of the respondent is put on the basis that the ‘appeal had very little prospect of success.’ Whilst I have had no difficulty in reaching the conclusion as to the outcome of the appeal, I would in this case still apply the same principle in relation to costs, primarily for the reason that it is in the daughter’s interest that there be as little antagonism between the parties as possible. It is to be hoped that the parties can now work together in the daughter’s interest and avoid returning to court to continue battles over custody, care and control which hopefully will have been resolved. The order I would make therefore be that there be no order as to costs.”

18.It is therefore clear from these principles that while it is in the unfettered discretion of the court, when it comes to costs over the custody care and/or access arrangements of a child, the appropriate order would normally be no order as to costs, but as for claims for financial provision for a child,  the starting point is for costs prima facie to follow the event, which may however be displaced by an order against a party who had been guilty of unreasonable conduct or where there was such disparity between the means of the parties that a specific order would be fair or justified.

Costs Arguments

19.As noted above, it is Ms Irving’s submission that this is such a case where an order for costs in the Mother’s favour in both the child’s care arrangements and financial provision is warranted essentially for the following reasons.

20.Firstly, she argues that given the facts that the trial was to cover both matters, with evidence on both issues to be dealt with together and not separately, and that agreement on custody, care and control as well as access was only reached outside court on the morning of the first day of trial, and that since the Mother was obliged to bring the application for the benefit of the child so that proper assurance as to the Father’s fitness to have the child in his care during access could be provided given the history of his drug use, and hence while several orders were made along the way for the Father’s access to Z, they were either contingent on an undertaking given by his mother to be present at all times, or on his undertaking to ensure that the Chinese governess employed by the Mother be present at all of his access, cumulating in the order made at the trial on 14th September 2012 inter alia for the Father to have hair drug tests every 3 months up to March 2013 to ensure that he would remain drug free, hence she submits that the application was necessary to safe guard the interests of the child, and the Mother is therefore entitled to her costs instead of the usual no order.        

21.There was never any challenge by the Father to the Mother’s claim for care and control of Z, as he only sought her joint custody with the Mother and reasonable access including staying access. Joint custody was eventually acceptable to the Mother, and the only real issue for the trial was over her concern of the Father’s past drug use and its effect on Z’s safety and welfare in particular during his staying access to her. While the Father did strenuously deny that he was still using drug, he was ready and willing to undergo those tests demanded by the Mother so as to alleviate her concern, and which did show that he has remained drug free, hence they both can be said to have acted bona fide in the interests of their child, and it cannot in my judgment be justified to make a costs order against the Father as far as the care arrangement for the child is concerned.     

22.As for the costs of the much more contentious part of the application for financial provision for the child which as noted above took up the bulk of the trial, the Mother’s argument again is that she had no choice but to bring proceedings as she found the offer made by the Father derisory, which was then only HK$76,500 per month including HK$38,000 for rent, when she was already paying HK$76,000 for her accommodation, and that it was only at the trial that he increased the sum to HK$47,000 for rent after he was satisfied that she was not cohabiting with her boyfriend, it was late in the day as her costs had already been incurred, and in any event still far from sufficient as found by the court in the said judgment.

23.Furthermore, Ms Irving argues, that the Father’s approach to the litigation had been oppressive given that he held all the financial cards, such as demanding a paternity test at the commencement of the proceedings, having the Mother and her then boyfriend followed and spied on by his private investigators, and as his refusal to produce un-redacted copies of his credit card statements that the Mother was put to the costs of bringing the matter to court, all of which she argues would justify an order of costs in her favour.

24.Mr Coleman on the other hand submits that there are in fact strong arguments that the Father, rather than the Mother, is properly to be regarded as having succeeded in the litigation, as it is clear from the Appendix A to his Skeleton Argument a schedule identifying her demands over the course of the correspondence and the proceedings, that the Mother’s financial demands started too high, but only increased as time wore on, that she was constantly ‘moving goalposts’ in her demands, and that there are other areas identified in the said schedule where costs were unnecessarily or unreasonably incurred or triggered by her, such as her very lengthy 1^st affidavit filled with scandalous and unnecessary allegations, or filing of other irrelevant or peripheral materials or for financial disclosure of information which was irrelevant or never used.

25.As noted above her open proposal before the trial sought a lump sum of HK$32 million for a property, various smaller sums for decoration and a Mercedes as well as maintenance of over HK$174,000 per month, while in her without prejudice offer made after the trial on 9^th October 2012 she may have come down somewhat to HK$28 million for the lump sum and HK$145,000 for the monthly maintenance, and while the award under the judgment of HK$118,000 per month inclusive of the costs of accommodation was higher than the Father’s offer, Mr Coleman submits that it was still much closer to his offer than to the Mother’s demands, and that the structure of the award, i.e. to include rent and no lump sum for purchase of a property, was in line with the Father’s suggested approach. Nevertheless, he is prepared to accept that no order as to costs would be the correct order to make in this case.               

26.While I do not agree that having surveillance on the Mother and her then boyfriend was necessarily oppressive on the part of the Father as he was entitled to investigate whether they were then cohabitating and hence the boyfriend would have been making financial contribution towards the Mother’s rental and household expenses, and thereby impacting on her claims,  I do however accept that the Father could be criticised for his approach to the issue over the standard of living which the parties enjoyed during their relationship, or with some of his financial disclosure, as reflected in my judgment.

27.On the other hand, criticism may also be levelled against the Mother not only for her unrealistically high demands as noted above by the Father, but also for her approach with her application as if they were the full spectrum of ancillary relief claims in a divorce suit not just for herself but also for her other daughter N, to both of whom she knew very well that the Father, rightly or wrongly, owes no legal obligation under the existing legislation, starting from the very first day of the proceedings with her 400 pages supportive affidavit and exhibits referred to above, with seemingly little concern about her legal costs and seemingly belying her present argument of vast disparity in wealth between her and the Father.                 

28.There is no question in my mind of that disparity given the parties’ respective financial disclosure at the trial and my findings of their means in my judgment, which makes it all the more difficult to understand why the Mother had not bother to seek legal aid throughout the entire proceedings if not from the first moment when she realised that her application was going to be opposed, which caused the Father to question whatever arrangements she had made with her solicitors, the details of which he says that she has not informed the court but suspects that she may have sources, other than her latest 11^th Affidavit of 17^th September 2013 when she claimed to have paid a total of HK$1,250,000 towards her costs mainly from the voluntary payment of HK$750,000 from the Father and HK$480,000 borrowed from her parents, leaving still some HK$3 million outstanding.    

29.Whatever arrangement the Mother may have with her solicitors over her costs, of which the Father suspects may in fact be funded by her boyfriend but without offering any proof, or whether she should have applied for legal aid in the first place, of which she claims she would not have been qualified, they should not in my view detract from the fact that it is within the court’s unfettered discretion to make a costs order in her favour if the marked disparity in wealth between the parties may indeed cause the Mother’s costs to bear harshly on her economy but could be discharged by the Father without significant impact upon his, and that it would in all the circumstances of the case be fair to do so, as it was said in Keller v Keller and Legal Aid Board supra.

30.Ms Irving argues that since the court should act in the best interests of the child, not ordering costs would undo the substantive order the court has made, as the Mother would otherwise be left crippled financially as a result, which is bound to be detrimental to the welfare of the child who lives with her and is inevitably affected by the Mother’s financial predicament, which was the basis, Ms Irving submits, that the court in the case of LGA nee P v LKKD [FCMC 13921/2010] ordered costs in favour of the wife notwithstanding its finding that she was guilty of making unreasonable demands for an unrealistic award with no regard to the husband’s true financial position.

31.In that case Deputy Judge Carlson awarded a lump sum of GPB900,000 to the wife after a short marriage for purchasing a suitable home for herself and the 2 children of the family but which amount was exceeded by the parties’ total legal costs incurred, and hence the wife sought an order for the husband to bear all her costs of the proceedings. In his ruling on costs dated 15 July 2013, the learned judge laid most of the blame of the high legal costs on the parties’ contest on discovery at para6 of his judgment:

“But what has done most harm is the contest on discovery. I have said this elsewhere in this case, which is that the wife and her solicitors had persuaded themselves that the husband, being a member of a wealthy extended family, must have an awful lot of money somewhere, which he was hiding and which they were determined to winkle out. This in itself is bad enough but, as the litigation progressed the hostility between the parties and unfortunately, their respective solicitors increased. The reason put forward for this part of the costs bill is that because the husband was not forthcoming it has to be accepted that the wife’s solicitors were duty-bound to keep returning for yet more disclosure. This pressure did have the effect of producing a number of undisclosed bank accounts, although what was in them did not in the event change the landscape. The final test as to whether this pressure was justified must be the ultimate result of the disclosure. By the time that I had come to write my judgment I was satisfied that disclosure was sufficient although, Mrs Irving’s response to this is that, if it was sufficient this was because of the pressure that had been and, had to be applied to produce it.”

32.He was then critical of the wife for her unrealistically high demands against the husband at para30:

“Whilst the details of the process of litigation is very important and it is this which goes to make up the overall picture, it seems to me important to stand back and ask the question ‘who has done better?’. In this case there is no clear-cut winner, if that is an expression that should be used in a case where the court was not only trying to be fair to the parties themselves but also to their two young sons. Nevertheless, having posed this question for myself I propose to answer it and, it seems to me that the husband has done rather better than the wife. Whilst he was somewhat ungenerous, in my view, on capital by suggesting that she should take what was offered and go and live in Purley near her mother, he was prepared to be more generous on maintenance than the court ultimately ordered. The overall impression of this case, I am afraid to say, is of the wife, very well supported by her solicitors, trying to squeeze as much out of the husband as possible. Whilst it might be said that this is what most litigants do in every case, this particular application has been driven to completely unrealistic boundaries to the extent that on occasions, as I read and then heard the evidence in court, I considered that greed pure and simple was the main driving force. That is a harsh assessment of the wife and mother who has displayed great pluck, courage, love and understanding for her children’s needs specially towards R but, when it came to translating her needs as she saw them into money, the case turned into a campaign to take the husband for everything that he had. I found her initial demands unattractive. It was only when the case came to its conclusion that those demands, certainly on capital, were trimmed to something that was understandable and far better judged.”

33.Nevertheless the learned judge awarded her the majority of her costs and explained his decision at para33:

“Even now the wife says she should have all her costs taxed on an indemnity basis, this when she has been awarded far less than she was pushing for until very late in the case, only when Mrs Irving got to her feet to make her final speech. In terms of pure merits having regard to the outcome the best that I believe she would be entitled to is to bear all her own costs – therefore no order as to costs. But I am afraid that such an order would completely undo what I have now put in place for the children and in consequence for the wife herself. Her costs are so substantial that most of the lump sum would go if she had to pay for her own costs and such a result cannot be right. As it is, she is having to already bear some of her costs from interlocutory orders and an element for costs ordered against her.”

34.And at para36:

“I have decided that the only way to safeguard the children’s position is to order the husband to pay the great majority of the wife’s costs. I do not think for one moment that this is a just outcome as between the parties themselves but I must preserve the lump sum, I hope in its entirety. The husband will pay 78% of the wife’s costs. Such an order will almost inevitably result in the wife having to sell Regents Park unless she can find funds elsewhere to pay for her 22% and in addition the costs which she is separately having to bear as ‘no order for costs’ and those other orders where I had ordered her to pay the husband’s costs.”

35.In my earlier judgment criticisms were also made of the Mother for her unrealistically high demands throughout the proceedings, and for that matter of the Father too about his disclosure, and whilst it is true that they are as submitted by Mr Coleman more reasonably balanced and certainly nowhere as serious, but if this argument of marked disparity in wealth between the parties is to be run to justify the Mother’s claim for costs, the question must still be whether an ‘no costs’ order would undo the award as was the main concern of the learned judge in that case, or bear harshly on the Mother’s economy as per Wilson J in Keller supra?        

36.As submitted earlier by Mr Coleman, the Mother has never fully or properly disclosed what arrangements she had made with her lawyers to enable her to conduct her litigation over the past 2 years having allegedly only met a quarter of her total costs, of which the bulk had come from the Father’s voluntary contribution of HK$750,000 only shortly before the trial, and with not even an attempt to apply for Legal Aid at any stage of the litigation up to the judgment on her application. Without such proper disclosure on her part, is one simply to assume that hardship will surely bear upon her around the corner, or that the court’s award for the child will all be undone by all being handed over to her lawyers to settle her costs?

37.Unlike in  LGA nee P,  here there is no lump sum payable to the Mother which she may use to settle her costs and thereby undoing its purpose intended by the judgment, while the bulk of the periodical payment of HK$118,000 per month payable to her by the Father under my judgment was for her monthly rental, and the rest was financial provision for Z, leaving only her carer allowance of HK$25,000 which could realistically be used to meet her costs, but at its alleged outstanding amount it would take more than 10 years to pay off, and it is highly doubtful that that would be something which she and her solicitors could agree.

38.However, whatever arrangement she may have with her solicitors over her costs, and barring the most unlikely possibility of them being waived, given their substantial amount I agree they will impact significantly on the Mother financially or otherwise, and inevitably also on Z, it would therefore be appropriate for me to return to her first argument: that she was obliged to come to court for the order of financial provision for her child, and that although the final award was way short of her claims, it was nevertheless still more than what the Father had offered, and in the absence of any other without prejudice offer which would have protected him on costs, I agree with Ms Irving that the Mother should be entitled to a costs order in her favour, albeit not in its entirety.

39.As already referred to above, the Mother was guilty of maintaining such unrealistic demands throughout the proceedings that had prevented any possibility of settlement or compromise between the parties which must be one of the main cause for the staggering amount of combined legal costs of close to HK$10 million, hence in my view it would not be fair for the Father to shoulder up all her costs of her application, and taking into account also of the fact that part of those costs were over the child’s custody arrangement of which there should be no order, in conclusion and for all the reasons articulated above, I believe that a fair and appropriate order would be for the Father to bear 70% of the Mother’s costs, of which I believe will not impact on his economy, to be taxed on party & party basis if not agreed, and with credit to be given for the HK$750,000 already paid. Lastly and again my gratitude to both counsel for all their assistance rendered to this court. 

Ms Frances Irving instructed by M/S Oldham, Li & Nie for the Applicant.

Mr Russell Coleman SC instructed by M/S Mayer Brown JSM for the Respondent.