T (A Child), Re

In Children Act private-law proceedings, the general inhibition on costs orders at trial does not extend to appellate proceedings. After an extended trial, particularly one involving complex interlocutory orders, a broad assessment by the trial judge may be less reliable than specialist assessment by a costs judge. Where an appeal leaves mixed results and undermines the basis of a costs condemnation, mathematical apportionment may be inappropriate. Broad justice may instead be achieved by making no order for costs below or on appeal.

This was a costs appeal from the High Court, Family Division, following an extended private-law dispute under the Children Act. The trial judge had made a costs order against the father. On appeal, the father relied on the mixed results below, including the treatment of alleged parental alienation and issues concerning the parties’ conduct and evidence.

The central questions were whether the trial costs required reassessment after the appeal and whether the restraint on costs orders in private-law children cases applied to appellate proceedings.

Lord Justice Thorpe delivered the judgment of the court.

1. Assessment of trial costs. The assessment of costs by a trial judge at the end of an extended trial will often be abnormal. The longer and more complex the trial, and the more numerous the interlocutory orders, the less reliable a broad judicial assessment may be compared with specialist assessment by a costs judge.
2. Effect of the appeal. The appeal left undisturbed important findings concerning the alleged conspiracy and the father’s failings. However, the trial judge had dismissed or failed to recognise the existence, or need to investigate the existence, of alienation. The basis for condemning the husband in costs was therefore undermined, creating a need to reconsider the trial costs.
3. Appellate costs. The inhibition on costs orders in Children Act private-law cases, expressed in relation to trials, did not apply to appellate proceedings. Although the father had achieved substantial success, he had put his case too high and had failed on subsidiary issues.
4. Disposition. Mathematical apportionment of the trial costs was undesirable, and apportionment of the appeal costs would not produce sufficient overall fairness. The court therefore made no order for costs either below or in the Court of Appeal.

The court also observed that avoiding an inter-parental costs order might assist future relations, and suggested that the parties consider using an experienced family mediator. That observation was subsidiary to the costs decision.

1. Court of Appeal (Civil Division) varied the costs position and ordered no order for costs either below or in the Court of Appeal.
2. High Court, Family Division (Mr Justice Wilson) had made a costs order against the father following the extended trial.