Challinor v Challinor

Costs in a permission application ordinarily follow the event. The successful respondent should receive her reasonable costs unless an exceptional reason makes that course inappropriate. The Court of Appeal is not the proper forum for reopening allegations that could and should have been addressed at trial. A costs assessment must avoid double accounting, and the court may correct an earlier calculation after considering the parties’ submissions. Where costs are payable and an existing lump sum is due, deduction from that sum may provide an appropriate mechanism for payment.

The judgment concerned costs following the court’s dismissal on 29 July 2004 of the appellant’s application for permission to appeal three orders made by Wilson J in ancillary relief proceedings arising from the parties’ divorce. The appellant alleged failures of disclosure and argued that the respondent should receive no costs. The court directed written submissions on costs because the respondent’s schedules had not been served before the hearing, the appellant was acting in person, and the court could not readily be reconstituted for an oral costs application. The central issues were whether costs should follow the event, the proper amount of those costs, and whether the sum could be deducted from a lump sum payable under Wilson J’s order.

1. Costs liability. The court rejected the submission that there should be no order as to costs. The appellant’s permission application had failed, and the respondent had incurred expense answering allegations that the judge had been misled or had proceeded on a false premise. Costs follow the event unless an exceptional reason makes that course inappropriate. No such reason existed. The respondent was therefore entitled to her costs from the point at which she was served with the order listing the permission application for oral hearing.
2. Proper forum and permission threshold. Allegations concerning disclosure could and should have been raised at the trial before Wilson J. The Court of Appeal was not the appropriate forum for their re-investigation. An appellant seeking permission had to show a reasonable prospect of success, which the appellant had failed to do. Given the allegations, the respondent was entitled to answer them and to appear by solicitors and counsel.
3. Assessment. The court considered the competing schedules and found the charging rates reasonable. It accepted that its earlier calculation had duplicated the £960 charged for work on documents. The previous assessment was therefore reduced by £960 plus VAT of £168, from £17,842 to £16,714 inclusive of VAT. The court declined to deduct £234 for the transcript.
4. Payment. The respondent was entitled to deduct the assessed costs from the lump sum payable to the appellant under Wilson J’s order. That mechanism was considered the swiftest and most efficient means of payment. The court made those orders accordingly.

1. Court of Appeal (Civil Division): On 29 July 2004 dismissed the appellant’s application for permission to appeal three orders made by Wilson J in ancillary relief proceedings and directed that costs be determined by written submissions.
2. Court of Appeal (Civil Division): In [2004] EWCA Civ 1674, concluded the costs assessment, corrected double accounting, assessed costs at £16,714 inclusive of VAT, and directed deduction from the lump sum payable under Wilson J’s order.