In Timokhina v Timokhin [2019] EWCA Civ 1284 the Court of Appeal overturned an order that a mother pay counsel’s fees of certain hearings. The judgment is interesting in that costs were disallowed (inter partes) as unreasonable even when the award was being made on an indemnity basis.


The trial judge ordered that a mother pay the father’s costs of a hearing on an indemnity basis .   Those costs included the costs of counsel, including leading counsel, attending certain hearings.  The judge had summarily assessed the costs and they totalled £109,324. The mother appealed.  The Court of Appeal dismissed most of the grounds of the mother’s appeal but did allow the appeal in relation to counsels’ fees of several hearings.


Mrs Justice King rejected three of the mother’s arguments in relation to costs liability. However the costs of leading counsel, and junior counsel, were reduced substantially.
    1. Whilst Mr Viney takes exception to some of the solicitors’ costs, in particular the figure of £15,639.50 in relation to “work done on documents”, his real focus is in relation to counsels’ fees which accounted for the lion’s share of the father’s costs; some £67,500. Mr Viney submits that in respect of the hearing on 26 July (which it will be recollected related to the application for a stay) it was unnecessary for both leading and junior counsel to attend that hearing and highlighted that the mother was represented by leading counsel alone.
    2. The application for the stay was made very late and came before the court just two days before the father and children were due to be leaving for Russia. Mr Jarmain submits that it was reasonable for the father in those circumstances, given the history of the case and the unpredictability of the mother’s litigation stance to date, to be represented by his established legal team; particularly given the profound importance to the children of this hearing, (a stay would mean that the children could not leave the country as planned in two days’ time).
    3. I accept the submission of Mr Jarmain that, given the critical importance to the children that their planned relocation should not be disrupted or delayed, it cannot be said that it was outside the judge’s discretion to consider it reasonable for the father’s entire legal team, namely leading and junior counsel, to attend the hearing on 26 July 2018. Whilst for my own part I have significant reservations as to the level of fees incurred for that hearing, it would not be right for me to ‘tinker’ with that part of the order which must necessarily refer to the 26 July hearing, by seeking to reduce the total amount of the fees charged on behalf of counsel.
    4. Mr Jarmain deploys the same submission in respect of the hearing on 2 October 2018. Again, he submits that it was reasonable for the father to have his entire legal team at that hearing. Mr Jarmain further submitted that the letter of 19 September only amounted a ‘conditional withdrawal’ of the appeal by the mother and that Withers were therefore entitled to deem briefs to have been delivered the following morning and to attend the hearing at full strength.
    5. This was a submission which had been made by Ms Eaton at the hearing on 2 October. The judge’s response was that: “This was not a straightforward case and even at the point when the appeal appeared to be conceded, it ceased to be entirely straightforward, and I am satisfied that the fees referred to in the statement of costs were properly incurred by the appropriate fee earners.”
    6. With respect to the judge, I do not accept that the letter from HFC sent on the afternoon of 19 September (set out at [16] above) can be interpreted as in any way a conditional withdrawal by the mother of her appeal. In my judgment the letter was unequivocal in its terms and it was abundantly clear that the only remaining issue was as to costs.
    7. Mr Jarmain rightly reminds the court that the judge was making a costs order on an indemnity basis and therefore, pursuant to CPR 44.4, the costs do not have to be “proportionate”, the test is whether they are “unreasonable” and that pursuant to rule 44.3 (3):

“Where the amount of costs is to be assessed on the indemnity basis, the court will resolve any doubt which it may have as to whether costs were reasonably incurred or were reasonable in amount in favour of the receiving party.”

  1. I have those principles firmly in mind, as I have the importance of this court resisting the temptation inappropriately to interfere with the exercise of discretion of the first instance judge. However, in my judgment, counsels’ fees for the hearing on 2 October 2018 are, on any basis, unreasonable. The costs were “unreasonable in amount” pursuant to CPR 44.4(1)(b)(ii).
  2. By the time the matter came to hearing, the principle of costs had also been agreed, leaving only the question as to whether they should be summarily assessed and if so, whether on a standard or indemnity basis.
  3. The mother was attended by Mr Viney on 2 October who was marked at £1,500 for the morning’s work. In my judgment, for Ms Eaton QC to have attended this low-level hearing where there was no longer any threat to the welfare of the children, let alone marked at £25,000, was unreasonable, even absent a requirement for proportionality and notwithstanding the CPR 44.3(3) presumption in favour of the receiving party where indemnity costs are ordered.
  4. Mr Jarmain has appeared unled in this appeal where he has skilfully and successfully repelled three of the four grounds of appeal in relation to which permission was granted. There can be no question but that he was more than capable of dealing with a summary assessment of costs without the guiding hand of Ms Eaton. It follows that in my judgment Ms Eaton’s fee was unreasonably incurred pursuant to CPR 44.4(1)(b)(i).
  5. In my judgment, Mr Jarmain’s fee of £12,500 whilst reasonably incurred, was unreasonable in amount. Comparisons are odious, but one cannot help but compare it with the £1,500 on Mr Viney’s brief; Mr Viney having also appeared before this court unled and having presented the appeal equally skilfully.
  6. For those reasons, I would allow the appeal on Ground 4 in relation to quantum to the extent that I would reduce the global figure by £31,250, namely a figure equal to Ms Eaton’s brief fee and half of that of Mr Jarmain. Accordingly, if my Lords agree, I would substitute an order for costs in the sum of £78,144 in place of that of £109,394 as ordered by the judge.