Family Law Update: Wasted costs against non-parties in family proceedings

Friday 12 July 2019

Written by Nisha Bambhra of the Garden Court Chambers Family Team

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Cost orders in private children law proceedings are relatively rare and ‘exceptional’ in cases concerning non-parties. In the recent case of ABCDEF (Fact-Finding: Honour Based Violence) 2019 EWHC 406, the parties applied for a costs order against an expert witness who on multiple occasions failed to comply with the Court’s case-management directions to provide an addendum expert report. As a result of this failure, two unnecessary hearings (wasted hearings) took place on 2nd and 10th October 2018. The expert in response to the application claimed that she had not been in a position to comply with the Court orders due to ill health, however, went on to concede that there were no good reasons not to make an order. 

Mr Justice Keehan, in considering whether to make a costs order against an expert, had regard to section 51(1) and section 51(3) of the Senior Courts Act 1981, rule 28.1 of the Family Procedure Rules, and rule 44.4 and 46.2 of the Civil Procedure Rules. He also considered dictum of Lord Brown in the Privy Council case of Dymock Franchise Systems (NSW) Pty Ltd v Todd & Ors (No.2) (New Zealand) [2004] UKPC 39 where His Lordship summarised the principles governing discretion to award costs and said:

“Although costs orders against non-parties are to be regarded as ‘exceptional’, exceptional in this context means no more than outside the ordinary run of cases where parties pursue or defend claims for their own benefit and at their own expense”.

Mr Justice Keehan held (at para 39) that although the expert had provided explicit details of her medical condition:

“as a professional witness and accepting forensic work, the expert knows and knew too well of her duty to the court and of the importance of filing reports on time. If her health was such that she could not be sure that she would be able to comply with court orders, she should frankly not have accepted instructions to be a forensic expert witness”.

He concluded that the expert had “serially” failed to comply with orders and went on to find no cogent reason as to why the expert should not be named in judgement. 

This case is a reminder to experts that, as a ‘professional witness’, they have a duty to the Court to assist it in accordance with the overriding objective, and, this includes filing their reports in accordance with the Court’s timetable (Practice Direction 25B). It also serves as a warning to experts that where there are serial failures to comply with directions, the consequences are not only an award of costs against them but also the possibility of being named and shamed in the judgment which potentially could result in reputational damage.

Nisha Bambhra is a member of the Garden Court Family Team.

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