N (A Child), Re

Costs in complex family proceedings should generally be determined by a broad-brush assessment of all the circumstances. The court should consider relative success, the time and cost devoted to individual issues, and their importance in the proceedings as a whole. An issue-based costs order is inappropriate where both parties achieved substantial success on important issues and neither can fairly be regarded as the overall winner. In such circumstances, the fair outcome may be no order as to costs. A litigant in person is not, merely for that reason, barred from recovering costs.

The judgment concerned costs arising from financial and enforcement applications in proceedings under Schedule 1 to the Children Act 1989. The substantive judgment had been handed down as Re N (A Child), G v A [2009] EWHC 11 (Fam). The father and mother each claimed substantial success on different issues. The father sought a summary costs order, while the mother sought her costs, or a substantial contribution, following detailed written submissions. The central questions were whether costs should await the father’s pending application for permission to appeal, whether an issue-based or detailed assessment was appropriate, and what order fairly reflected the parties’ mixed success.

1. The court declined to postpone the costs decision pending the father’s application for permission to appeal. The costs decision concerned proceedings already determined and could not be affected by the eventual outcome of that application.

2. The court rejected an issue-by-issue analysis. The father had succeeded on important matters, including accounting, trusteeship-related issues, and the distinction between ages 21 and 18. The mother had obtained security and protection in relation to relevant sums and had also achieved success on other issues. Neither party could plausibly claim to have been the overall winner.

3. In this type of case, the court should adopt a broad-brush approach. It must have regard to all the circumstances, including who succeeded on particular issues, the relative time and costs devoted to those issues, and their importance in the proceedings considered as a whole.

4. An issue-based costs order was therefore inappropriate. The mother was wrong to dispute the father’s entitlement, as a litigant in person, to recover costs, but that did not determine the ultimate order.

5. The fair, just and reasonable result was that each party should bear their own costs. The court ordered that, in relation to the Schedule 1 proceedings since the order of Sumner J dated 9 December 2005, there be no order as to costs.

1. High Court (Family Division): The substantive judgment was handed down in Re N (A Child), G v A [2009] EWHC 11 (Fam). Costs were subsequently determined in the present judgment, with no order as to costs.

2. The father had a pending application to the Court of Appeal for permission to appeal on one issue. The High Court declined to await its outcome.