The Mother v The Father

In children proceedings, the ordinary practice remains that costs are not ordered against a party unless there has been reprehensible behaviour or an unreasonable stance. The same approach applies on appeal, although the known factual findings and reasons may affect whether continuing an appeal is reasonable. A finding of unreasonable conduct is a gateway to the costs discretion; it does not require an order, or an order for all costs. Indemnity costs require more than a hopeless legal argument and ordinarily call for an ulterior purpose, improper motive or comparable abuse. An intervenor may face costs where it exceeds the permitted remit, acts contrary to the court’s directions, and fails to assist the court. Any order should remain fair and proportionate.

The mother appealed against a refusal to reopen private law children proceedings in which findings of parental alienation had been made. Permission was granted on the narrow issue of the competence of an unregulated expert, and the appeal was dismissed in an earlier judgment. The father, the expert and the Association of Clinical Psychologists sought their appeal costs from the mother and, in the association’s case, from the association as intervenor.

The court had to decide whether the mother’s conduct was reprehensible or unreasonable, whether indemnity costs were justified, and whether the association’s conduct was sufficiently exceptional to justify costs against an intervenor.

1. Costs against the mother. The governing approach in children cases was that costs should not ordinarily be ordered without reprehensible behaviour or an unreasonable stance. On an appeal, the known findings and reasons may make conduct that was reasonable at first instance unreasonable thereafter. The mother’s decision to pursue the appeal was unreasonable because, on her own case, she had no authority or evidence capable of establishing that the expert was unqualified. That finding opened the costs jurisdiction but did not compel an order.
2. The court exercised its discretion in a fair and proportionate way. The appeal had developed beyond the mother’s direct control after the intervention of the association. The mother was ordered to pay one half of the father’s appeal costs and one half of the expert’s costs. The order was on the standard basis.
3. Indemnity costs. A weak or hopeless legal argument does not, without more, justify indemnity costs. The present conduct did not involve an ulterior motive or improper purpose, so the application for indemnity costs was refused.
4. Costs against the intervenor. The court’s power under Senior Courts Act 1981, s 51 extends to an intervenor, but the applicable threshold is exceptionality. An intervenor permitted to participate because of special interests or knowledge must assist the court within the permitted remit. Going beyond that remit, contradicting directions, and acting unreasonably so as not to assist the court may justify an adverse costs order. The association’s conduct was wholly exceptional. Given the absence of a costs warning and its limited resources, it was ordered to pay £10,000 to each the father and the expert.

1. High Court (Family Division): the earlier appeal was dismissed: [2023] EWHC 345 (Fam).
2. High Court (Family Division): costs applications following that appeal were determined by the present judgment.