(Court of Appeal; Ward and Wall LJJ; 10 July 2008)
The child had suffered an injury that raised fears that he had been sexually abused: the father brought residence proceedings alleging that the mother's partner had sexually abused the child; the mother counter-charged with allegations that the father had abused the child. The injury was sufficient to trouble the child's GP, to involve social services, and lead a psychiatrist to conclude on the papers that there had been sexual abuse. A number of interlocutory orders were made, some by consent. The judge was eventually satisfied that there had been no sexual abuse, although she did find that the mother's partner had played spanking games that the child had not liked. At a costs hearing, which the father was unable to attend through illness, the judge found that the father had behaved in a harassing and totally unacceptable manner during the course of the litigation, and awarded the mother her costs on an indemnity basis, amounting to about £120,000.
The father had properly brought his concerns to court, but in the conduct of the case had gone beyond what was appropriate, however, the judge had erred in failing to take into account the fact that the mother's case had not been established. The judge ought to have ordered the father to pay one half the costs of the proceedings. Ordering indemnity costs was a condign action, and to order them throughout the duration of the proceedings without investigation had been wrong. Consent orders and compromised orders would ordinarily require an order for no order for costs, and certainly would not justify indemnity costs without investigation. The judge had been wrong to undertake an assessment on the bald facts set out in the schedule without a detailed consideration of what was a large bill for a disputed residence application; she should have ordered an assessment, not undertaken the exercise herself. The father was to pay costs assessed in the sum of £50,000.