HH v BLW

In family proceedings, the court has a broad discretion on costs and begins with no presumption that one party pays the other’s costs. An application concerning contact with a child approaching 16 is not necessarily misconceived, particularly where the applicant seeks the child’s wishes and feelings through the FHDRA process. Permission to appeal may nevertheless be refused despite a real prospect of success where the proposed appeal is disproportionate to the sum at stake, the likely costs and the court resources required. The court may consider the parties’ financial positions and the need to allocate judicial resources proportionately.

The applicant father sought permission to appeal against a district judge’s order requiring him to pay £2,468 of the mother’s costs in private Children Act proceedings. The proceedings concerned contact with their daughter, who was about 15½ when the application began and approaching 16 at the FHDRA. The district judge regarded the application as misconceived and the outcome as foregone. The father challenged that assessment and the costs order. The High Court had to decide whether the proposed appeal had a real prospect of success and, if so, whether permission should nevertheless be granted in the court’s discretion.

1. The application for permission to appeal was refused. Although the proposed appeal had a real prospect of success, it was disproportionate to the amount at stake, the likely costs and the use of court resources.

2. The district judge had correctly recognised the broad discretion as to costs in family proceedings. The court starts with a blank sheet of paper, and may consider litigation conduct and whether, in all the circumstances, it is just to make a costs order. The father remained responsible for his decision to issue proceedings, whether or not he acted on legal advice.

3. The district judge’s description of the contact application as entirely misconceived and the result as foregone was unjustified. The application was made while the child was approximately six months below the statutory age of 16. Section 9(6) of the Children Act 1989 makes orders as to contact after that age exceptional, but the remaining period may still provide an important opportunity for an age-appropriate order.

4. The FHDRA under Practice Direction 12B, paragraphs 1.5 and 1.7, is intended to provide a forum in which parties can reach understanding, resolve issues and obtain assistance from a judge and CAFCASS officer. Seeking an application for that purpose was reasonable in the circumstances. It would, however, have become unreasonable to persist after the CAFCASS report if the father had continued despite the child’s expressed wishes; he did not do so.

5. Under rule 30.3(7)(a) of the Family Procedure Rules 2010, the real-prospect test is lower than the test on the substantive appeal, where substantial error of law or a plainly wrong discretionary decision would be required. The permission decision remained discretionary. Applying the overriding objective in rule 1.1 of the Family Procedure Rules 2010, including proportionate use of resources, the court could refuse permission even though the threshold in rule 30.3(7)(a) was met.

6. The proportionality principle identified in Dow Jones & Co. Inc. v Jameel [2005] EWCA Civ 75 and Cook v Plummer [2008] EWCA Civ 484; [2008] 2 FLR 989 applied. The proposed appeal risked at least £2,000 in the mother’s costs and a significant allocation of Family Division resources in relation to an order for £2,468. The father’s personal grievance did not make the appeal proportionate, and no compelling reason otherwise required it to be heard.

1. High Court (Family Division): permission to appeal from the district judge’s costs order was refused under the discretionary power in rule 30.3 of the Family Procedure Rules 2010.