SP v DM (Costs)

In children proceedings, the general principle is that costs orders are inappropriate, but the court may depart from it where the circumstances justify a contribution. An appeal is not treated differently merely because permission was granted. Permission is ordinarily a cursory paper exercise and is not conclusive of the merits or of costs. On an appeal, parties are expected to reassess their position in light of the known findings and reasons. The court may consider the merits, the parties’ resources and the likely effect of a costs order, while avoiding reliance on conduct that does not bear on the applicable principles.

The court determined costs after dismissing the mother’s appeal against an order made by Recorder Wood KC. The father sought his costs of resisting the appeal. The mother relied on the general approach to costs in children’s cases, the fact that permission to appeal had been granted on some grounds, her reasonable conduct, her financial difficulties and the parties’ continuing relationship concerning their child.

The issue was whether the circumstances justified departing from the general principle against costs orders in children’s cases and, if so, what contribution was appropriate.

1. General approach. The court applied the principles identified in re S (A Child) (Costs: Care Proceedings) [2015] UKSC 20. The fact that proceedings are an appeal rather than a first-instance trial does not alter the principles, although it may affect their application. On appeal, the factual findings and reasons are known, so parties can reassess whether to pursue or resist the appeal.
2. Permission to appeal. The grant of permission was not conclusive on costs. Permission had been granted on paper, without the respondent’s submissions, and without the scrutiny available at the contested appeal. The mother should have taken account of the warning that three grounds were unlikely to succeed. The appeal, after full examination, had no proper substantive criticism of the judgment.
3. Public interest and conduct. The case did not raise issues of important public interest. The judge was not materially influenced by the father’s complaints about the mother’s conduct, although some criticisms might have had validity. The loss of contact and delays did not determine the costs issue.
4. Resources and amount. The court considered the parties’ incomplete but sufficiently detailed financial information, their commitments and the continuing relationship between them. A significant contribution was justified because leaving the father to bear all the costs of opposing an unmeritorious appeal would produce a greater injustice. The father’s modest costs were not reduced. The mother was ordered to pay £10,750 inclusive of VAT, representing 62.5% of the father’s costs. No further order was made concerning the transcript costs.

• High Court (Family Division): the substantive appeal against the order of Recorder Wood KC was dismissed in the judgment referred to as [2023] EWHC 2089 (Fam). The present judgment determined the consequential costs issue.