Phillips v Phillips

Where an appellant abandons an appeal after an amendment to the respondent’s notice, the court may make a tailored costs order. The absence of a merits adjudication does not require either no order for costs or an ordinary order in favour of the respondent. The court may take account of points that should have been raised earlier, the costs already incurred, and the substantial savings resulting from abandonment. Costs may therefore be limited to identifiable stages of the appeal.

The appellant appealed from a decision of the High Court of Justice, Chancery Division. After the Court of Appeal granted the respondent permission to amend her Respondent’s Notice following points raised from the bench, the appellant decided not to pursue the appeal. The court therefore had to determine the appropriate costs order in circumstances where neither the appeal nor the Respondent’s Notice had been adjudicated on their merits.

1. The appeal was dismissed after the appellant decided not to pursue it in light of the course taken at the hearing.
2. The court rejected both proposed extremes: an order that there be no order for costs and an ordinary order requiring the appellant to pay all the respondent’s costs. The fact that there had been no adjudication on the merits did not determine the costs outcome.
3. In exercising its costs discretion, the court considered that the points relied on in the amended Respondent’s Notice ought to have been included in the notice served on 10 March 2008. At the latest, they should have been developed in the respondent’s first skeleton argument, served on 21 November 2008.
4. The appellant’s decision not to pursue the appeal produced a substantial saving in costs. The appropriate order was therefore limited to the respondent’s costs up to and including service of the Respondent’s Notice in March 2008, together with the costs of preparing and serving the first skeleton argument. The intervening costs were excluded.
5. The specified costs were subject to detailed assessment unless agreed. The formal order also recorded that the application was granted.

• Court of Appeal (Civil Division): The appeal was dismissed. The appellant was ordered to pay the respondent’s costs up to and including service of the Respondent’s Notice, and the costs of the first skeleton argument, subject to agreement or detailed assessment.
• High Court of Justice, Chancery Division: Appeal brought from a decision of His Honour Judge Paul Girolami QC; no citation or further details are stated in the judgment.