M (A Child), Re

The exceptional approach to costs at first instance in children proceedings does not remove an appellate court’s broad discretion over the costs of an appeal. A party who succeeded below may take stock of the merits and propose a compromise. If that party instead opposes the appeal in full and seeks costs if successful, the court may order payment of, or a contribution towards, the successful appellant’s costs.

A proposed second appeal against such an exercise of discretion will not justify permission where it has no reasonable prospect of success and raises no important point of principle or practice.

A father obtained an unsupervised contact order from a district judge. On the mother’s appeal, Pauffley J set aside that order because the hearing had failed adequately to address domestic violence, safeguarding and procedural fairness. She also ordered the father to contribute £20,000 towards the mother’s appeal costs.

The father sought permission for a second appeal limited to the costs order. He argued that costs in children proceedings were exceptional and ordinarily required unreasonable litigation conduct. The central issue was whether those first-instance principles restricted the High Court judge’s discretion when awarding the costs of an appeal.

1. Application for permission to appeal refused. Wall LJ held that the proposed appeal fell well within the ambit of a properly exercised judicial discretion. It had no reasonable prospect of success and raised no important point of principle or practice for the purposes of section 55(1) of the Access to Justice Act 1999.

2. The father’s argument wrongly treated the principles governing costs at first instance in children proceedings as if they also controlled the costs of an appeal. Re T (Order for Costs) [2005] EWCA Civ 311 illustrated why costs at first instance are exceptional: parties may reasonably advance genuinely held positions before the facts have been determined. Unreasonable litigation conduct may arise later, including through a refusal to accept findings already made.

3. A judge hearing an appeal from a first-instance decision in children proceedings has a broad discretion over costs. The successful party may receive costs even though the party resisting the appeal was not responsible for the first-instance judge’s errors. The absence of a costs-follow-the-event rule in family proceedings does not extinguish that appellate discretion.

4. A party who succeeded below has an opportunity before the appeal to reassess the merits and make an offer to compromise. A party who opposes the appeal in full and announces an intention to seek costs if successful cannot complain if, after allowing the appeal, the judge orders that party to pay or contribute towards the appellant’s costs. Pauffley J had expressly considered the father’s opportunity to reassess his opposition and was entitled to order a substantial contribution.

5. The fact that another judge had previously dealt with directions did not assist the father. A judge conducting a directions hearing cannot ordinarily assess the merits of a contested appeal and would be constrained by the risk of appearing to decide it prematurely.

6. Wall LJ made no criticism of the junior counsel who represented the father at first instance. Although counsel might in some cases have a duty to alert a court that proceedings had gone off course, this was not such a case.

1. Court of Appeal (Civil Division): Refused the father permission to bring a second appeal against Pauffley J’s costs order.
2. High Court: Pauffley J allowed the mother’s appeal from the contact order, set that order aside and ordered the father to pay £20,000 towards the mother’s appeal costs.
3. Principal Registry of the Family Division: District Judge Malik made an unsupervised contact order and made no order as to costs.