K (a child), Re

In a procedural application concerning a disputed costs order, the Court of Appeal may adjourn permission to appeal where the application is out of time, factual disputes about service and notice require investigation, and immediate appellate determination would be disproportionate. The appropriate course may include giving the respondent notice, allowing factual issues to be resolved in the High Court, staying proceedings and directing mediation if requested. Failure to participate in directed mediation without good reason may justify a costs penalty. If the costs issue returns for determination, the court should scrutinise whether hearings were necessary and whether claimed standard costs are reasonable and free from duplication.

The applicant sought permission to appeal a Family Division costs order made by Mr Justice Sumner on 12 November 2002. The order required him to pay £2,500 towards the respondent’s costs and £90 for her attendance at an earlier hearing in proceedings concerning the removal and return of a two-week-old child. The applicant said that he had not received the costs papers or notice of the costs hearing. The application also appeared to be out of time. The central issues were whether time should be extended and how the disputed service, notice and costs questions could fairly and proportionately be determined.

Lord Justice Ward did not determine the merits of the proposed appeal. The application for permission was adjourned, with a stay in the meantime, and directions were given for a resumed hearing on notice.

1. The application appeared to have been made out of time. Although the delay remained a hurdle, the court considered that the difficulties faced by a litigant in person and evidence of persistent attempts to navigate the procedure might justify an extension of time.
2. If the application proceeded, the court would first need to resolve disputed evidence about whether the costs schedule and grounds had been served and whether notice of the 12 November hearing had been given. The Court of Appeal might not be able to conduct that inquiry itself and might need to remit the matter to the High Court.
3. On any resumed costs determination, the court might need to examine whether the 26 June hearing was necessary after the child had been returned, whether the costs schedule contained duplication, and whether the charges were reasonable. The costs would be assessed on the standard basis, rather than the indemnity basis. These were prospective observations, not findings on the merits.
4. The litigation had become disproportionate and wasteful. If either party requested use of the court’s Alternative Dispute Resolution Service, mediation was directed. Unreasonable failure to participate might justify a costs penalty.
5. The matter was to return before a two-member court, including Ward LJ, if the parties could not resolve it. A transcript was to be supplied to both parties at public expense.

• Court of Appeal (Civil Division) — The application for permission to appeal the Family Division costs order was adjourned on notice, with a stay and directions for possible mediation and a resumed hearing.
• Family Division — Mr Justice Sumner made the costs order on 12 November 2002, requiring payment of £2,500 towards the respondent’s costs and £90 for attendance at an earlier hearing.