C (Children), Re

Costs orders in family proceedings are generally exceptional. They may be made where a party has behaved quite unreasonably. At the permission stage, the relevant threshold is whether the proposed challenge is reasonably arguable on the facts as they stood when the order was made. Permission may therefore be granted without determining the merits of the costs order. Where the sum at stake is modest compared with the likely cost of a full appeal, the court may urge the parties to reach an accommodation.

Mr C sought renewed permission to appeal a costs order made by Mr Recorder White at Wandsworth County Court on 31 August 2005 in family proceedings concerning the schooling of the children. The underlying application had failed, but Mr C did not challenge the substantive decision. He challenged only the costs order.

Permission had previously been refused on paper by Wall LJ. On an earlier occasion, Wall LJ and Coleridge J had adjourned the matter for further material. The central issue was whether Mr C’s contention that it had not been unreasonable to bring the application was reasonably arguable on the facts existing when the costs order was made.

Permission granted. Lord Justice May gave the reasons, and Lord Justice Wall agreed.

1. The underlying family application concerned the children’s schooling. The renewed application related only to the costs order made by Mr Recorder White on 31 August 2005.
2. In family proceedings, costs orders are not generally made. The recognised exception is an exceptional case in which one party has behaved quite unreasonably: see Re T (Order for costs) [2005] EWCA Civ 311. The recorder had, in essence, reached that conclusion.
3. The question at the permission stage was whether Mr C’s argument that, on the facts as they stood in August 2005, it was not unreasonable for him to bring the application was reasonably arguable. Lord Justice May held, with some hesitation but sufficiently, that the argument crossed the threshold of arguability. Permission to appeal was therefore granted.
4. The court did not determine whether the costs order was ultimately correct. Lord Justice May strongly urged the parties to seek an accommodation because the costs in issue, £6,939, were modest compared with the potential costs of a full appeal.

Order: Application granted.

• Court of Appeal (Civil Division): on 24 March 2006, the renewed application for permission to appeal was granted. Lord Justice Wall agreed with Lord Justice May. [2006] EWCA Civ 488
• Wandsworth County Court: Mr Recorder White made the challenged costs order on 31 August 2005 after an unsuccessful family application concerning the children’s schooling.