(No. 2: Costs)Alexis Campbell KC (instructed by Mishcon de Reya) for applicantKatie Cowton KC (instructed by Irwin Mitchell) for respondentJUDGMENT
[8]… Where a private FDR has taken place, the next FRC Judge dealing with the case will ordinarily wish to be satisfied that a thorough FDR exercise has taken place and parties should provide a written explanation to that judge of what has happened so the FRC Judge can be so satisfied. Absent specific enquiry by the FRC Judge, this explanation should not include reference to any without prejudice positions, but should describe the date of the private FDR, the tribunal, the time spent and an assurance that offers were made on each side and an indication given. 25). It is therefore clear that the court is entitled to enquire into what happened at the PFDR Appointment so as to be satisfied that a thorough FDR exercise has taken place. This expressly includes the time spent, that an indication was given, and an assurance that offers were made on each side. 26). I have no doubt that in due course there will be a family case in which a failure by a party without good reason to attend (or engage in) NCDR will be considered to be litigation conduct and justify a costs order whether the applicable rules are the FPR or the CPR. Even prior to the rule changes, a failure to mediate was penalised in costs (H v W (Cap on Wife’s Share of Bonus Payments) (No. 2) [2015] 2 FLR 161 per Eleanor King J (as she then was)). In X v Y [2024] 2 FLR 800, Gwynneth Knowles J observed at [2] that she wished “to signal that, at all stages of the proceedings, the court will be active in considering whether non-court dispute resolution is suitable. Changes to the Family Procedure Rules 2010 ('the FPR') which are due to come into effect on 29 April 2024 will give an added impetus to the court's duty in this regard” and at [9] that with effect from 29th April 2024 “[a]mendments to the costs sanctions the court can impose in financial remedy proceedings will take into account conduct relating to a failure either to attend a MIAM or to attend non-court dispute resolution”. 27). Gwynneth Knowles J then placed the rule changes of 29th April 2024 within the wider litigation landscape in civil proceedings and stated (at [15]) that to assume that the decision in Churchill v Merthyr Tydfil County Borough Council and Others was of limited relevance to family proceedings was “unwise” as “[t]he active case management powers of the CPR mirror the active case management powers in the FPR almost word for word and both the civil and the family court have a long-established right to control their own processes.” 28). However, this is not that case. 29). Wholly separately H has accepted that he will pay the reasonable costs of W’s penal notice application in relation to his failure to file and serve his s25 statement before the date he had been directed to do so. He served the statement before my order of 4th November 2024 but Miss Cowton accepted that he was late and costs were incurred. Miss Cowton submitted, however, that the costs claimed were excessive. The N260 totals £5,291.80 (inclusive of VAT and disbursements). It was said this was a straightforward paper application not requiring any witness statement or complicated advice, preceded by a couple of chasing letters. There was no need to have five lawyers at Mishcon de Reya working on it ranging from Grade A to Grade D (5.5 hours claimed is clearly disproportionate), as well as taking the advice of leading counsel. The court would always have made the order when a s25 statement is late and a final hearing is imminent (which is all the D11 needed to say). The maximum reasonable costs were said to be £1,000 (inclusive of VAT). 30). I consider that the costs claimed in respect of this application are excessive for the reasons given on H’s behalf. I assess the costs payable on the standard basis as £2,000 (inclusive of VAT and disbursements). These are payable within 14 days. 31). That is my judgment. RECORDER NICHOLAS ALLEN KC