A v G

Where an appellant advances a legitimate point and the respondent has reasonable opportunities to concede it, failure to do so may justify an award of costs against the respondent. This applies where the failure causes the appeal to continue and the appellant to incur costs. The award remains subject to the applicable rules. Sympathy for the respondent, or reference to additional material that does not displace the relevant facts, does not prevent the court from making an award in principle.

The father appealed from a decision of Munby J in the Family Division concerning the date on which a lump sum was payable. The judge refused permission to appeal. After the appeal notice was served, the mother did not concede the father’s objection. The Court of Appeal’s judgment addressed the resulting question of costs, including whether the mother should bear the father’s costs of pursuing the appeal.

The Court of Appeal held that costs should be awarded in principle in favour of the father against the mother, subject to the applicable rules.

1. The father had challenged the logic of retaining 2005 as the date for payment of the lump sum. His objection was made both after the draft judgment and when permission to appeal was sought.
2. Although the judge’s refusal of permission was said to have been based on the matter being fact-sensitive, the mother had been made aware that the father considered the point legitimate and supported by logic. She did not concede it at that stage.
3. After service of the appellant’s notice, the mother should have reconsidered her position, considered the logic of the grounds of appeal, and conceded the appeal. Her failure to do so caused the matter to proceed to the hearing and resulted in the father incurring costs.
4. The Court was sympathetic to the mother but was not persuaded that reference to ten files altered the conclusion required by the facts.

Order: costs in favour of the father against the mother.

• Court of Appeal (Civil Division): awarded costs in principle in favour of the father against the mother.
• High Court of Justice, Principal Registry, Family Division: Munby J refused permission to appeal concerning the date for payment of the lump sum; the mother reported that the judge considered the matter fact-sensitive.