Philip John Mainwaring v Susan Claire Bailey (Costs)

On an appeal concerning financial remedy proceedings, the appeal court has a discretion as to costs and approaches that discretion on a clean sheet. The general rule that parties bear their own costs in financial remedy proceedings does not govern the appeal itself.

The outcome of the appeal and the parties’ litigation conduct are relevant, including failures to comply with procedural rules and orders. A litigant in person remains required to comply with the ordinary procedural requirements of an appeal.

A hopeless appeal does not, without more, justify indemnity costs. An indemnity order requires additional features such as culpable motive, improper purpose or tactical abuse. Where the appeal was pursued unreasonably but without such features, costs may be awarded on the standard basis from the date the appeal was set down for hearing.

The appellant appealed from a decision of the Family Court at Cardiff. In a separate judgment, the High Court dismissed the appeal after a rolled-up permission and appeal hearing, reporting that decision as [2024] EWHC 2296 (Fam). Directions were then given for determination of the respondent’s costs application.

The respondent sought her costs of the appeal on the indemnity basis. The appellant resisted any costs order, challenged costs incurred before a particular case-management order, and relied on his partial self-representation. The issues were whether costs should follow the outcome, how the parties’ litigation conduct affected the discretion, the appropriate starting date, and whether the circumstances justified indemnity costs.

1. Costs jurisdiction and approach. The High Court sitting as an appeal court had power to make a costs order under FPR r.30.11(2)(e), and possessed the lower court’s powers under r.30.11(1). The costs discretion was exercised on a clean sheet. The general rule in financial remedy proceedings that no order for costs should be made did not govern the appeal itself. The success or failure of the appeal was capable of being a decisive factor, but was not automatically determinative.
2. Conduct and procedural compliance. The appellant pursued an appeal which the court regarded as hopeless, continued it through oral argument, failed to disclose the material consent order when seeking an extension of time, breached procedural directions concerning the appeal bundle and skeleton argument, and filed additional material without permission. Those matters materially increased the respondent’s costs. A party who takes steps personally, or is partly self-represented, remains required to comply with the procedural rules. The court did not treat the appellant as a litigant in person because he had solicitors and counsel instructed.
3. Amount and starting date. The respondent’s engagement became necessary and proportionate once the permission application and appeal had been listed for a rolled-up oral hearing. Costs were therefore awarded from 16 April 2024, the date of the listing order, rather than only from 25 July 2024. The award was assessed on the standard basis at £16,192.48 inclusive of VAT, representing 80% of the respondent’s claimed costs.
4. Indemnity basis. The hopelessness of the appeal and unreasonable conduct justified a costs order, but did not establish the culpable motive, improper purpose or tactical abuse required for indemnity costs. The respondent’s costs were accordingly payable on the standard basis.

1. Family Court at Cardiff: proceedings giving rise to the appeal; case number NP20D04014.
2. High Court (Family Division): the appeal was dismissed following a rolled-up permission and appeal hearing; the substantive judgment was reported as [2024] EWHC 2296 (Fam).
3. High Court (Family Division): the respondent’s subsequent costs application was allowed in part. Costs were awarded from 16 April 2024 on the standard basis.