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C v S [2022] EWHC 800 (Fam)

Application to appeal of a refusal of an application for costs


The case concerned lengthy children proceedings wherein the Appellant father applied for a contact order (in 2013), enforcement of said contact order (in 2014), and a child arrangements order whereby the children would live with him and spend time with the Respondent mother (in 2019). Likewise, the Respondent made an application to relocate with the children to the USA (2014), though this application was dismissed. At the most recent welfare hearing, in 2020, the Judge granted the Appellant's application for the children to move to live with him and spend time with the Respondent.

Subsequently, the Appellant applied for a costs order against the Respondent, which was heard on 29 June 2021. He maintained that the Respondent had acted vexatiously and reprehensibly throughout the proceedings; indeed, the Judge made the following findings against her in the fact-finding exercise:

"the Respondent repeatedly failed to comply with orders; she gave false evidence in a number of important respects; she was evasive; she was disingenuous; she was misleading at times; she made serious and unsubstantiated allegations of sexual and physical abuse against the father to professionals and in her evidence; she manipulated professionals to undermine the Appellant's case; she misrepresented the evidence of others to give the impression it supported her case; she made allegations which significantly increased the hearing times; she changed the nature of her case and finally she refused mediation" [141].

The Appellant sought costs associated with: the Respondent's application to relocate, the fact-finding that formed part of the 2019 proceedings, and the welfare hearing in 2020. The first instance Judge refused the Appellant's application and the Appellant appealed the same.

The Appellant sought to appeal the decision on four grounds: (i) the Judge erred and/or was wrong to conclude that the Respondent's conduct in the relevant proceedings had been "anything other than unreasonable and/or reprehensible"; (ii) the Judge was wrong to conclude that the Respondent's conduct was neither reprehensible or unreasonable on the basis that many litigants in family proceedings of this kind engage in conduct of a similar nature; (iii) the Judge erred in principle in her approach or was wrong to have considered it necessary that the Respondent's conduct be categorised as "exceptional" before any costs order should be made against her; and/or (iv) the Judge failed to give adequate weight to matters of importance and/or gave too much weight to matters which she ought not to have taken into account or ought to have attached significantly less weight to, such that she arrived at a decision which was outside the generous ambit of her discretion and/or was wrong [3].

In adjudicating the appeal application, Mrs Justice Arbuthnot first set out the law in respect of applications for costs in children law proceedings [111-129] and the overturning of a lower court's exercise of its discretion [130-136]. Thereafter, she addressed each of the hearings for which the Appellant sought costs. With regards to the Respondent's application to relocate, she noted that the order that the Judge made on that occasion was that there should be "no order as to costs," suggesting that the question of costs was considered and refused, and that the matter could not now be re-opened [139-40]. Likewise, the Judge refused the Appellant's submission that the mother acted "unreasonably" in the welfare proceedings in 2021 in seeking for the children to remain in her care, and maintained that the Judge had acted within her discretion. 

However, when considering the fact-finding proceedings, Mrs Justice Arbuthnot held that the Respondent had acted reprehensibly and unreasonably in her conduct, and that the first instance Judge was wrong when she found that the Respondent had not done so. As such, the first instance Judge had acted outside the ambit of her discretion.

Having found that the threshold for making a costs order was met, Mrs Justice Arbuthnot went on to consider whether the first instance Judge was wrong not to make a costs order. She held that she was and allowed the Appellant's application to appeal on grounds (i), (ii) and (iv) above. In terms of ground (iii), she held that the first instance Judge's use of the word "exceptional" was a slip of the tongue and it was clear that she had applied the correct principles when considering the question of an order of costs against the Respondent. Mrs Justice Arbuthnot went on to make a summary assessment and order that the Respondent pay the Appellant the sum of £37,000, which she considered "a just and reasonable amount" [183].

Case summary by Dr Bianca Jackson , Barrister, Coram Chambers

For full case, please see BAILII