ON APPEAL FROM THE CENTRAL FAMILY COURT
HHJ OLIVER
FD11D02465
Royal Courts of Justice
Strand, London
WC2A 2LL
Before :
MS JUSTICE HENKE
Re: H (A Child) (Appeal: Costs)
After receiving written submissions from both the Appellant and the Respondent.
Approved Judgment
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MS JUSTICE HENKE
This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
Introduction, Background and Competing Submissions
The respondent made an application for her costs of this appeal on an indemnity basis. I have already given judgment on the appeal which is reported as Re H (A Child) (Appeal: Child Maintenance) [2025] EWHC 2361 (Fam). The respondent had filed her N260 on 20 May 2025. The respondent’s costs of appeal were estimated by her as of 20 May 2025 as £8,749. The May hearing did not proceed for reasons I have already set out in my earlier judgment. The additional costs incurred by the hearing being adjourned caused the total amount claimed by the respondent to be put by her at £11,000. She tells me in her skeleton argument in support of her application for costs that she sought to reach an agreement with the appellant about costs on 11 September 2025 but, she says, the appellant did not reply.
The respondent has provided a detailed argument in support of her application for the costs of the appeal. Her argument can be summarised as follows:
The appeal was dismissed.
The respondent complies with orders whereas the appellant has a history of non-compliance and litigation conduct intended to thwart the respondent’s claim for family finance. She asserts that this amounts to litigation conduct and has been ongoing since 2011.
The appellant, she says, is aware of the financial and emotional impact on her and their child yet he has continued to delay proceedings which has only served to heighten the distress.
The appellant has used the appeal to avoid paying arrears of maintenance which had accrued prior to HHJ Oliver’s April 2024 order and continued to accrue under paragraphs of HHJ Oliver’s order which had not been stayed during the appeal process and upon which permission to appeal had been refused and certified as totally without merit.
She has made offers to settle the appeal which have been, she says, ignored or dismissed.
The appellant has filed a skeleton argument in which he argues that the appropriate order for costs would be no order between the parties. He submits that:
FPR 2010, r28.3 provides that the general rule is no order for costs except where a costs order is appropriate because of unreasonable litigation conduct
Costs should be proportionate and fair particularly in finely balanced cases or cases where the sums are modest. An order for costs against him would be disproportionate given the finances in this case are modest.
He denies any litigation conduct which would justify a costs order being made against him. The appeal though unsuccessful was pursued in good faith. His conduct cannot be regarded as vexatious or abusive.
However, if contrary to the above submissions I decide to make an order for costs in the Respondent’s favour, I am asked by the Appellant to summarily assess them and limit them to a cap of 50 hours at LIPs rates being a total of £950.
In readiness for the appeal hearing in May 2025, the Appellant filed a N260 in which he put his costs to 20 May 2025 at £4551.
Having read both arguments on the issue of costs, on 15 September 2025 I made the following directions:
1.The Appellant shall no later than 2pm on 23 September 2025 file and serve the following:
Any submissions he wishes to make in relation to he specific instances of litigation conduct raised by the respondent in her argument in support of her application for the costs of the appeal.
Any submissions he wishes to make in response to the respondent’s schedule of offers she has made to settle the appeal including the offer made on 11 September 2025 in relation to the costs of the appeal.
A copy of the authority relied upon – J V J (Costs of Financial Remedy Appeal) [2017] EWCA Civ 1159.
[…]
Costs reserved.
The appellant has filed a skeleton argument in which he makes further submissions, but he did not descend into detail to rebut the Respondent’s arguments concerning litigation conduct. In essence, his submissions can be summarised as (i) proportionality to conduct and (ii) proportionality to the amount of maintenance in dispute. The appellant argues that the respondent’s stance has been disproportionate, unreasonable, and designed to extract an unfair advantage. The respondent counters that she has had tried to be reasonable and proportionate in her approach to the litigation but that the appellant will not engage with her. She states that his litigation conduct has continued and that he has failed to respond to offers to settle the claim for costs. The respondent has sent to me via my clerk open offers to settle the issue of the costs of the appeal at £5300. The Appellant has simply responded to her offers sating that her offers are unreasonable, and he has no intention of communicating about unreasonable offers.
The Law
I set out the applicable law in paragraphs 6-10 of Mainwaring v Bailey [2024] EWHC 2614 (Fam). For the benefit of both parties, I set out the relevant paragraphs herein:
The Rules
The High Court sitting as an appeal court has the power to make an order for costs when sitting as an appeal court by reason of FPR r.30.11(2)(e).
Further, on hearing an appeal, the appeal court has all the powers of the lower court under r.30.11(1).
The lower court's powers in relation to costs in "financial remedies proceedings" are prescribed by r.28.3. FPR 28.3 states as follows:
This rule applies in relation to financial remedy proceedings.
Rule 44.2(1), (4) and (5) of the CPR do not apply to financial remedy proceedings.
Rules 44.2(6) to (8) and 44.12 of the CPR apply to an order made under this rule as they apply to an order made under rule 44.3 of the CPR.
In this rule –
'costs' has the same meaning as in rule 44.1(1)(c) of the CPR; and
'financial remedy proceedings' means proceedings for –
a financial order except an order for maintenance pending suit, an order for maintenance pending outcome of proceedings, an interim periodical payments order, an order for payment in respect of legal services or any other form of interim order for the purposes of rule 9.7(1)(a), (b), (c) and (e);
an order under Part 3 of the 1984 Act;
an order under Schedule 7 to the 2004 Act;
an order under section 10(2) of the 1973 Act;
an order under section 48(2) of the 2004 Act.
Subject to paragraph (6), the general rule in financial remedy proceedings is that the court will not make an order requiring one party to pay the costs of another party.
The court may make an order requiring one party to pay the costs of another party at any stage of the proceedings where it considers it appropriate to do so because of the conduct of a party in relation to the proceedings before (whether or during them).
In deciding what order (if any) to make under paragraph (6), the court must have regard to –
any failure by a party to comply with these rules, any order of the court or any practice direction which the court considers relevant;
(aa) any failure by a party, without good reason, to—
attend a MIAM (as defined in rule 3.1); or
attend non-court dispute resolution;
any open offer to settle made by a party;
whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;
the manner in which a party has pursued or responded to the application or a particular allegation or issue;
any other aspect of a party's conduct in relation to proceedings which the court considers relevant; and
the financial effect on the parties of any costs order.
No offer to settle which is not an open offer to settle is admissible at any stage of the proceedings, except as provided by rule 9.17.
For the purposes of this rule 'financial remedy proceedings' do not include an application under rule 9.9A.
Practice Direction
Practice Direction 30A specifically deals with Respondent's costs on permission applications. It states as follows:
In most cases, applications for permission to appeal will be determined without the court requesting –
submissions from; or
if there is an oral hearing, attendance by, the respondent.
Where the court does not request submissions from or attendance by the respondent, costs will not normally be allowed to a respondent who volunteers submissions or attendance.
Where the court does request –
submissions from; or
attendance by the respondent,
the court will normally allow the costs of the respondent if permission is refused.
Case Law
In H v W [2014] EWHC 2846 (Fam), Mrs Justice Eleanor King DBE (as she then was) considered and adopted the reasoning of Wilson LJ (as he then was) in Judge v Judge [2008] EWCA Civ 1456 and Baker v Rowe [2010] 1 FLR 761. Having done so she stated in relation to the financial remedy appeal then before her:
The essential feature of the proceedings in the present case is that this is an appeal. Appeals can be made against many different orders and may arise out of many different types of proceedings. Appeals can be launched against a whole range of first instance orders which will have been governed at first instance by any number of rules and procedures. Appeals are a separate category of hearing in respect of which specific rules apply. An appeal is separate from the proceedings the subject of the appeal and is governed by its own rules (here FPR r.30 which, inter alia, gives the appeal court the power to make an order for costs […]).
Respectfully adopting the approach of Wilson LJ in Judge and in Baker, an appeal is in my judgment in connection with and not in financial remedy proceedings and therefore is not subject to FPR r.28.3(5). Nor is the court bound by the general rule that costs follow the event.
It follows that this as this court approaches the exercise of its discretion when deciding what, if any, order for costs it should make it starts with a clean sheet. The success or failure of a party in the appeal whether in whole or in part may not always be determinative but is capable of being a decisive factor in the exercise of that discretion."
My Decision with Reasons
The appeal before me was an appeal in connection with financial remedy proceedings but not in financial remedy proceedings. A number of the appellant’s grounds were certified by me as being totally without merit. In relation to the two grounds that I did allow to proceed to appeal, the appellant succeeded on neither.
I also factor in that the appellant, in my judgment, unreasonably failed to attend either in person or virtually the first hearing on 20 May 2025 despite the significant efforts of the court staff to send him a link. Further, I consider the respondent is justified in her argument that the appellant has refused to negotiate a settlement of this appeal and in particular, the payment of the costs of this appeal. I do not take into consideration his alleged litigation conduct in the earlier litigation in the lower court. I factor in that I had granted the appellant permission to appeal in relation to the two grounds of appeal and thus implicitly they had a real prospect of success even if, ultimately, they did not succeed. I factor in the money claim at the heart of the dispute between the parties. Whilst they cannot agree the value of the amount at stake in the appeal, I need not determine it precisely. The amount in dispute in relation to future child maintenance can be simply stated to be not significant and to be less than the joint sum of costs claimed by the parties.
I stand back and balance the factors. In my judgment, there are two factors that weigh heavily in the balance in favour of the appellant paying the respondent’s costs. They are his conduct within the appeal proceedings (but not his alleged litigation conduct in the wider litigation) and his refusal to negotiate a settlement on the substance of the claim and, in particular of the costs, of the appeal. In the circumstances, I consider that the appellant should pay the respondent’s costs of the appeal which I will summarily assess at £5,500. That is half her claimed costs. I consider that is a fair amount given the appellant was given permission to appeal on two grounds and given there was some duplication in the respondent’s arguments. The amount of £5,500 shall be payable to the respondent by no later than 2pm on 9 December 2025. Thereafter interest will run at the standard rate.