R (A Child), Re

A trial judge has broad latitude when deciding costs. Although costs are conventionally reserved where an application is adjourned for a substantive hearing, that practice is not inflexible. The court may make an immediate costs order where the circumstances justify it, including the genesis of the proceedings and the possible effect of the order on their future course. On an application for permission to appeal, the court may also consider the practical consequences of reviving long-dormant and sensitive litigation, together with delay attributable to the applicant. Only an order falling outside the permissible breadth of the discretion warrants permission to appeal.

Proceedings were brought by Mrs R and the child, through her next friend, against Mr Burton under the Protection from Harassment Act. At an adjourned hearing in the Wandsworth County Court on 10 September 1998, the court renewed undertakings concerning harassment, communication and proximity to the child’s home. The child’s proposed evidence was adjourned to the High Court, while the statutory application was adjourned generally. Mr Burton was ordered to pay the previously reserved costs and the costs of that hearing.

The proceedings did not progress further. Judge Mitchell refused permission to appeal on 5 February 2001. Mr Burton then applied to the Court of Appeal, approximately four months out of time, challenging the costs order as premature and unfair. The central issue was whether the order fell outside the broad discretion available to the trial judge and whether permission should therefore be granted.

1. Permission refused. The costs order was not shown to be so exceptional as to fall outside the very broad latitude given to a trial judge in costs matters.
2. Where an application is adjourned for a further substantive hearing, reserving costs is conventional practice. It is not an inflexible rule. Each case requires an order reflecting its particular circumstances.
3. The judge was entitled to take account of the apparent genesis of the harassment proceedings, including the correspondence and events preceding them. The judge could also consider whether reserving costs would encourage another hearing, whereas ordering payment of costs incurred to date might assist in bringing the proceedings to an end.
4. In deciding whether permission should be granted, the Court of Appeal was entitled to consider the practical consequences of reviving litigation in a sensitive area after a three-year period without progress. The applicant’s responsibility for part of the delay was also relevant.
5. The contention that the costs order prejudged the merits did not establish an arguable error of principle or an exercise of discretion outside the permissible range. The application for permission to appeal was refused.

• Court of Appeal (Civil Division): On 14 September 2001, Lord Justice Thorpe refused the application for permission to appeal.
• Wandsworth County Court: On 10 September 1998, Her Honour Judge Mitchell renewed the undertakings, adjourned the child’s proposed evidence to the High Court, adjourned the statutory application generally, and ordered Mr Burton to pay the previously reserved costs and the costs of that hearing. On 5 February 2001, she refused permission to appeal.