H (A Child) (Appeal: Costs), Re

On an appeal connected with financial remedy proceedings, but not itself constituting financial remedy proceedings, the court has a discretionary power to make a costs order. The starting point is not the general rule in financial remedy proceedings that each party bears their own costs, nor an automatic rule that costs follow the event. The court should consider the circumstances afresh, including the appeal’s outcome, the parties’ conduct within the appeal, open offers, the reasonableness of pursuing issues, the manner in which the appeal was conducted, and the financial effect of any order. Conduct in earlier, separate proceedings should not be relied on unless it bears on the appeal itself. A costs order may be appropriate where the appellant’s conduct and refusal to negotiate justify it, even though permission to appeal had been granted and the appeal had a real prospect of success.

The respondent sought her costs of an unsuccessful appeal concerning child maintenance, on an indemnity basis. The appeal had been dismissed in the judgment reported as Re H (A Child) (Appeal: Child Maintenance) [2025] EWHC 2361 (Fam).

The respondent relied on the outcome of the appeal, alleged litigation conduct, failure to comply with orders, refusal to pay certain maintenance, and failure to engage with settlement offers. The appellant argued that the appropriate order was no order for costs under FPR 2010, r 28.3, that a costs order would be disproportionate, and that the appeal had been pursued in good faith. The central issue was whether the appellant’s conduct in the appeal justified departing from the ordinary costs position and, if so, what sum should be ordered.

1. Power and starting point. The appeal was in connection with financial remedy proceedings but was not itself financial remedy proceedings. The appellate court therefore had power to make a costs order under FPR 2010, r 30.11(2)(e), and possessed the lower court’s powers under r 30.11(1). The general rule in r 28.3(5) did not govern the appeal. The court approached costs afresh, although the success or failure of the appeal could be decisive: adopting H v W [2014] EWHC 2846 (Fam), which had adopted Judge v Judge [2008] EWCA Civ 1456 and Baker v Rowe [2010] 1 FLR 761 (paras 8–9).
2. Relevant considerations. The court considered the appellant’s conduct within the appeal, including his unreasonable failure to attend the first hearing despite efforts by court staff, and his refusal to negotiate settlement of the appeal and its costs. The respondent’s allegations about litigation conduct in the earlier lower-court proceedings were excluded. The court also took account of the fact that permission had been granted on two grounds, indicating a real prospect of success, and of the modest amount in dispute relative to the parties’ combined costs (para 10).
3. Outcome. Balancing those factors, the appellant was ordered to pay the respondent’s appeal costs. They were summarily assessed at £5,500, representing half the amount claimed, reflecting both the grant of permission and duplication in the respondent’s arguments. Payment was ordered by 2 pm on 9 December 2025, with interest thereafter at the standard rate (para 11).

• High Court (Family Division): The costs application followed dismissal of the appeal in Re H (A Child) (Appeal: Child Maintenance) [2025] EWHC 2361 (Fam). The present court ordered the appellant to pay £5,500.