KS v ND (Schedule 1: Appeal: Costs)

In financial remedy appeals under Schedule 1 to the Children Act 1989, costs should prima facie follow the event. The court retains discretion concerning quantum and timing, and must consider success, conduct and admissible offers. On first-instance Schedule 1 proceedings, the court should begin with a clean sheet rather than automatically applying a costs-following-the-event approach. Pre-proceedings conduct is relevant to costs only where it has a direct causal connection with the later generation of costs. A Calderbank offer strengthens a successful party’s claim for costs, but is not essential to it.

The mother and father applied to vary a 2005 consent order made under Schedule 1 to the Children Act 1989 concerning financial provision for their son. The District Judge reduced the father’s fixed child support, extended payments through tertiary education, apportioned school fees between the parents, refused a further lump sum and made no order as to costs.

The mother obtained permission to appeal on the school-fees and costs issues. The school-fees appeal challenged the requirement that she meet the balance of the fees. The costs appeal relied on her alleged success, the father’s alleged litigation misconduct and the economic impact of the litigation. The central questions were whether the school-fees order was sustainable and what costs approach applied on a Schedule 1 appeal.

1. School fees. The appeal against the school-fees order was dismissed. The District Judge was entitled to assess the mother’s reasonable budget by reference to the figures before him, including mortgage interest, and to exclude loan repayments which were not the father’s obligation. The fixed maintenance, the permitted budgetary cushion and the potential bonus-sharing payment together enabled the mother to meet the school-fees shortfall. The findings concerning the father’s bonus and pension were factual findings which were at least tenable and, on the evidence, correct.
2. First-instance costs. Schedule 1 proceedings are excepted from the general no-order-as-to-costs rule in FPR 2010 rule 28.3. In first-instance Schedule 1 proceedings the court should begin with a clean sheet, particularly because the mother acts in effect in a representative capacity for the child. The court should consider success, conduct and admissible offers under CPR 44.3(4), as applied by FPR 2010 rule 28.2(1). Pre-proceedings conduct is relevant only where it has a direct causal connection with the later generation of costs.
3. Appeal costs. On a financial remedy appeal, including an appeal in Schedule 1 proceedings, costs should prima facie follow the event. The father’s Calderbank offer strengthened his entitlement, but he would in principle have been entitled to costs even without it. His costs were summarily assessed at £13,000, representing a fair standard-assessment figure. The amount was payable in 26 monthly instalments of £500, deductible from the periodical child-support payments while those payments remained in force.

• District Judge. On 8 May 2012, District Judge Simmonds varied the Schedule 1 consent order, made a school-fees contribution order, refused a further lump sum and made no order as to costs.
• High Court (Family Division). Permission to appeal was granted on the school-fees and costs issues. The appeal was dismissed. The respondent received £13,000 appeal costs, payable by 26 monthly instalments.