Re D (Costs of Appeal: Variation or Revocation)

A final costs order made by the High Court may, in principle, be varied or revoked under rule 4.1(6) of the Family Procedure Rules 2010. The power is limited and must be exercised judicially, consistently with the overriding objective. It is not a substitute for an appeal or a means of re-litigating matters already decided.

Relevant circumstances may include fraud, a material change of circumstances, material misstatement or non-disclosure affecting the original decision, and manifest judicial mistake. Welfare considerations are relevant in children proceedings but are not paramount. A direction that a costs order may not be enforced without leave can be made under rule 4.1(4)(a), including for an impecunious person who is not legally aided, although such orders will be rare.

The proceedings arose from an appeal in private-law children proceedings. Francis J granted the father permission to appeal out of time, relieved him from sanctions and allowed the appeal: [2020] EWHC 1167 (Fam). Following a rehearing, the court did not find that the father had sexually abused the child. Francis J subsequently ordered the mother to pay one half of the father’s appeal costs, assessed at approximately £76,000, payable over 24 months.

The mother later applied to rescind or reduce the costs order, or alternatively to prevent enforcement without leave. She relied on financial difficulty, increased living costs and the effect of the order on the child’s welfare. The central questions were whether rule 4.1(6) of the Family Procedure Rules 2010 permitted variation or revocation of a final High Court costs order, what test applied, and whether enforcement could be suspended.

1. Application dismissed. The mother had not established a sufficient material change of circumstances, fraud, material misstatement or non-disclosure, or manifest mistake to justify varying or revoking the costs order.
2. Under rule 4.1(6) of the Family Procedure Rules 2010, the court has power in principle to vary or revoke a final order, including a discrete costs order. Cobb J preferred the reasoning of Mostyn J in TF v PJ; Re F to the more circumspect approach in N v J. The power remains limited and must be exercised judicially, not capriciously, and consistently with the overriding objective in rule 1.
3. The jurisdiction is not an alternative appeal route. A complaint that the original order was wrong or procedurally irregular should ordinarily be pursued by permission to appeal. Rule 4.1(6) should not permit a litigant to re-litigate a matter or obtain two bites at the cherry. The discretion is exercised more sparingly for a final order than for a procedural, interlocutory, injunctive or case-management order.
4. The child’s welfare was relevant but not paramount. The mother’s financial vulnerability, the rise in living costs and the stress associated with the order did not amount to a sufficient qualifying change. The original judge had been aware in general terms of the parties’ financial difficulties, and the later circumstances were not materially different or unforeseen.
5. An application based solely on changed financial circumstances would ordinarily be better heard by the judge who made the original order. Cobb J retained the application because its principal focus was the effect on the child’s welfare and he was already seised of the welfare proceedings.
6. A direction that a costs order is not enforceable without leave may be made under rule 4.1(4)(a), even where the unsuccessful party is not legally aided but is impecunious. Such an order is likely to be rare. Since no proper basis existed to vary or revoke the order, suspending enforcement would not have been principled and that alternative application was also refused.

The judgment described earlier procedural stages but determined a first-instance application concerning a High Court costs order.

• High Court (Family Division): Francis J allowed the father’s appeal and remitted the substantive children application for rehearing: [2020] EWHC 1167 (Fam).
• High Court (Family Division): Following the rehearing, Francis J ordered the mother to pay one half of the father’s appeal costs. Cobb J refused the later application to vary or revoke that order.