C (Children)

In child proceedings, the usual order is that each party bears their own costs. The court may depart from that practice where, for example, a party has acted unreasonably in the litigation or there is a substantial disparity of means. The civil principle that costs follow the event is not ordinarily applicable without identifying the relevant event and considering the distinctive nature of child proceedings. An unexplained finding of unreasonableness, or reliance solely on the ordinary civil costs rule, may disclose an error of principle and give an appeal a real prospect of success.

The father sought permission to appeal, together with an extension of time, against an order made by His Honour Judge Walker in the Wandsworth County Court on 15 February 2001. The underlying proceedings concerned residence and contact arrangements for the parties’ two children. The father did not seek to challenge the residence decision or contact order. His proposed appeal concerned an order that he pay 25 per cent of the mother’s costs.

The judge had referred to costs following the event and to a degree of unreasonableness by the father. The central issue was whether those reasons disclosed an arguable error of principle in a child case.

1. Permission and extension. Lady Justice Hale granted permission to appeal and extended time. The father had been misinformed by the county court about the applicable time limit, and the proposed appeal had a real prospect of success.
2. Costs in child proceedings. The ordinary civil principle that costs follow the event is not the usual practice in child cases. The normal order is that there be no order for costs, because parties with reasonable positions about a child’s welfare should not be deterred from advancing them, and a costs order may increase existing parental tensions. Those reasons were stated in R v R (Costs) (Child Case) [1997] 2 FLR 95, at pages 96 and 97.
3. Permissible departure. A costs order may nevertheless be made in a suitable case, including where a party has conducted the litigation unreasonably or there is a substantial disparity of means.
4. Error of principle. The lower court appeared to have relied on the proposition that costs should follow the event, without identifying what the event was. The father had failed to obtain a change of residence but had obtained a substantially different contact order. The judge also referred to a degree of unreasonableness without explaining what conduct was meant. On the material before the court, those matters created a real prospect that the costs decision would be overturned.
5. Order. The applications for permission to appeal and for an extension of time were allowed. A copy of the judgment was to be provided to the applicant.

• Court of Appeal (Civil Division): On an application for permission to appeal from the Wandsworth County Court order of 15 February 2001, Lady Justice Hale allowed the applications and granted an extension of time.