O (Appeal: Costs), Re

In children proceedings, the general practice remains that there is no order for costs. The usual gateway for departing from that practice is reprehensible behaviour or unreasonable conduct of the litigation. The court must assess all the circumstances, including conduct, partial success, settlement offers, proportionality and the effect of costs on resources available for the child’s welfare. Conduct concerning the child’s welfare is distinct from conduct of the litigation. The fact that proceedings are an appeal does not alter the governing principles, although known findings and reasons may affect whether pursuing or resisting the appeal was reasonable. A finding of unreasonable conduct gives jurisdiction to make a costs order but does not require one. Litigants in person are subject to the ordinary costs rules.

The appellant appealed from a Family Court decision concerning contact and incurred £1,220 before becoming legally aided. The earlier appeal was allowed in large part and the matter was remitted for rehearing. The appellant sought an order that the respondent pay those costs. The respondent accepted parts of the appeal but disputed other grounds. The central issue was whether the respondent’s conduct before and during the appeal justified departing from the usual no-order-for-costs approach in children proceedings.

1. Application dismissed. The court made no order for costs in relation to the earlier appeal.
2. Under Senior Courts Act 1981, section 51(1)(b), costs are discretionary. In family proceedings, Family Procedure Rules, rule 28.1, permits any order the court considers just. The court must consider all the circumstances, including conduct, partial success and admissible settlement offers under Civil Procedure Rules 1998, rule 44.2(4), together with the overriding objective and relevant welfare issues.
3. The general practice in children cases is no order for costs. The ordinary gateway for departure is reprehensible behaviour or unreasonable conduct of the litigation. Other circumstances may also justify an order, but a finding of unreasonable conduct is only a gateway and does not compel an order.
4. The relevant conduct must concern the litigation, not conduct relevant only to the child’s welfare. Unreasonableness may occur before or during proceedings and may include pursuing an appeal without proper basis, misleading the court, failing to engage with parties or hearings, or maintaining allegations known to be false.
5. The fact that the proceedings are appellate does not change the applicable principles. It may affect their application because the parties know the first-instance findings and reasons and can reassess whether to pursue, resist or compromise the appeal.
6. The respondent’s delay in formulating his response was regrettable but was not shown to involve deliberate delay, prevarication, unreasonable conduct or reprehensible behaviour. He later took steps to narrow and compromise the appeal. The parties also achieved substantial agreement, and neither was a clear winner on the issues requiring determination. Given their modest resources and the effect of costs on the children’s welfare, no order for costs was appropriate.

• High Court (Family Division): the earlier appeal was allowed in large part and the costs issue was reserved for determination in this judgment.
• Family Court at Guildford: the appeal arose from an order made by Mr Recorder Ian Peacock in case GU21P00308.