Unlike other court proceedings, orders for costs are not generally made in the family courts. However, in Archer v Renwick (unreported), the Court held that given the applicant’s misuse of litigation, which included subjecting the respondent to harassment and blackmail, it was in the interests of justice to do so in this case.
Background Facts
Mr Archer was a director of I-Design Construction Ltd (IDC), a construction company, and in control of his company’s litigation against an elderly client with whom the company had contracted to undertake a loft conversion at his only home. The client refused to pay the company further money after IDC took his life savings and abandoned the site, leaving him in a home at risk of structural collapse.
Mr Archer harassed his elderly client and bombarded him with threats of further litigation unless he paid up and also harassed Mr Renwick, his client’s Solicitor-Advocate and made false complaints to the police about him. The client subsequently counter-claimed and was successful. The matter was listed for a Damages Assessment Hearing in July 2022 and in the interim, directions were given for the service of witness evidence, Scott Schedules and updated expert reports for the quantification of damages.
Application Sought
Mr Archer then sought a non-molestation order - usually used to prevent threats, harassment and violence - against Mr Renwick to prevent the service of any more documents. He alleged that Mr Renwick was contacting and threatening his wife and children and that accordingly the order was required for their safety, although was unable to provide proof of anything sent to his family. Mr Renwick challenged the application on many grounds including the fact that he had no knowledge of Mr Archer’s children until he received the application providing their details.
The Decision
Despite the severity of the allegations, Mr Archer failed to attend the judgment hearing or provide an excuse for non-attendance.
The district judge concluded that the application for a non-molestation order was fundamentally misconceived and could not succeed as Mr Archer and Mr Renwick were not associated persons for the purpose of the Family Law Act 1996. While cost orders did not usually follow the event in family courts, it was noted that, given the seriousness of the allegations and taking all the circumstances into account, it was in the interests of justice to make a costs order on this occasion.
Chorley Principles Applied
The district judge noted that despite the fact that family courts use different rules, there is still absolute judicial discretion on the appropriate order for costs.
He also accepted Mr Renwick’s argument that as he was being sued in a professional capacity, costs should be assessed according to his standard hourly rate. In doing so, he had regard to Halborg v EMW Law LLP, which applied the Chorley Principle that a solicitor who uses his professional skills in his own cause was entitled to recover the same costs as if he had employed a solicitor. This includes not only out-of-pocket expenses but also profit costs.
As a result, the costs were assessed under the Chorley Principles without any deduction.
Our Comments
This case serves as a warning that the family courts are willing to impose costs where litigants abuse the protections of the court as a weapon in the litigation for their own gain.
For more news and updates, visit our blog.
