Justice Bodey v R (Children)

Permission to appeal a costs order requires a real prospect of success or another compelling reason for the appeal to be heard. The discretion to decide costs belongs primarily to the trial judge, who is best placed to assess the course and overall merits of the proceedings. An appellate court will interfere only where the costs decision falls outside the proper ambit of that discretion. Informal indications that a case might be listed before another judge do not remove the need for a party who objects to verify the position. Criticisms in statements do not amount to a formal application for a judge to stand down.

The father applied for permission to appeal part of an order made by His Honour Judge Hornby in the Bow County Court. The order required him to pay the costs wasted by an adjournment of his residence and contact application concerning the parties’ three children. The adjournment occurred after the father objected to Judge Hornby hearing the case, referring to strong language allegedly used at an earlier directions hearing. Before the adjournment, Judge Roberts had said that he would raise the matter with the resident judge but had made clear that he could not bind other judges. The central issue was whether the costs order had a real prospect of being successfully challenged.

The application for permission to appeal was dismissed.

1. Permission threshold. The applicant had to show that the proposed appeal had a real prospect of success or that there was some other compelling reason for it to be heard. The court was not persuaded that this threshold was met.
2. Costs discretion. The discretion as to costs was vested in the trial judge because he had seen the case develop and was best placed to assess where fairness required the burden of costs to fall. The Court of Appeal would be unlikely to interfere unless the decision fell outside the ambit of that discretion.
3. Effect of the earlier discussion. Judge Hornby had properly considered the exchange before Judge Roberts. That exchange left open whether the case would be listed before Judge Hornby, since Judge Roberts had expressly said that he could not bind the resident judge. The possibility of a different judge therefore did not make the costs order untenable.
4. Responsibility to check the listing. In the circumstances, it was within Judge Hornby’s discretion to find that a party who felt strongly that he should not hear the case had a common-sense responsibility to check the position with the court. The mother’s solicitors had supported the objection to avoid further appeals, but they had no independent responsibility to ensure that the case was listed before another judge.
5. Form of objection. The father’s criticisms and complaints in statements did not constitute an application for Judge Hornby to stand down. The objection was therefore effectively made at a late stage, when success would inevitably have caused costs to be wasted.

Order: application dismissed.

1. Court of Appeal (Civil Division): dismissed the father’s application for permission to appeal.
2. Bow County Court: His Honour Judge Hornby ordered the father to pay the costs wasted by the adjournment on 8 April 2002.