Pringle v Nervo: Costs in Children Act Proceedings—No Departure from the “No Order” Norm Without Truly Reprehensible/Unreasonable Litigation Conduct Assessed Bilaterally
1. Introduction
Pringle v Nervo ([2026] EWCA Civ 266) is a significant Court of Appeal decision re-emphasising the
high threshold for costs orders in private law proceedings under the Children Act 1989 (“CA 1989”).
The appeal was brought by the father, Matthew Pringle, against a costs order requiring him to pay
£385,587 (75%) of the mother’s costs incurred in concluded private law proceedings concerning their daughter (“C”).
The parties’ dispute had multiple strands: (i) the father’s desire to establish/maintain a relationship with C, (ii) profound conflict
about privacy versus publicity—in particular the mother’s social media presence and wish to “tell her story”, and (iii) the
litigation’s escalation following the mother’s September 2023 change of legal team and the introduction of serious allegations
(including “reproductive coercion” and rape) and an application for a fact-finding hearing that was refused.
The legal issue on appeal was narrow but important: whether the first instance judge was entitled to make a costs order given the
well-established rule that costs orders in children proceedings are only justified where a party’s litigation conduct has been
“reprehensible” or their stance “beyond the band of what is reasonable”.
2. Summary of the Judgment
The Court of Appeal (Lady Justice King, with Lord Justice Males and Lord Justice Stuart-Smith agreeing) allowed the father’s appeal.
It held that the judge below had erred in making a substantial costs order against the father.
The Court substituted “no order as to costs” in place of the 75% award, save for a limited order (conceded by the father)
that the father should pay the mother’s costs of preparing the declaration of parentage application on the standard basis (to be
assessed if not agreed).
The Court’s core findings were that the judge:
- failed to take account of the conduct of both parties when deciding whether to make a costs order at all;
- treated four matters as “unreasonable conduct” capable of justifying costs when, properly analysed, they did not meet the stringent threshold;
- misapplied the structure of the discretion by treating factors relevant to the threshold question (whether to depart from the norm) as merely mitigating factors when setting the amount.
3. Analysis
3.1 Precedents Cited
Re T (children) (care proceedings: costs) [2012] UKSC 36, [2012] 4 ALL ER 1137, ('Re T')
Re T is the modern anchor for costs in children proceedings. Lord Phillips stated at [44] that the established practice of not
awarding costs absent reprehensible behaviour or an unreasonable stance “accords with the ends of justice”. In Pringle, the Court
of Appeal treated Re T as setting the operative test: a costs order is a rare departure from the norm and requires litigation conduct
meeting that high threshold.
Re S reaffirmed that the same approach applies across public and private children cases. Lady Hale at [26] adopted
Wilson J’s formulation: costs orders may be appropriate where “the conduct of a party has been reprehensible” or their stance “beyond the
band of what is reasonable”. This case was central in Pringle: the Court of Appeal held that the first instance judge expanded the
notion of “unreasonable” too far, treating relatively commonplace procedural events as meeting the test.
Gojkovic v Gojkovic (No 2) [1992] 1 All ER 267
Cited as the historical foundation for the “no order as to costs” norm in children matters. In Pringle, it underpinned the Court’s
insistence that costs must not become routine in Children Act litigation.
Sutton London Borough Council v Davis (No 2) [1995] 1All ER 65 at [67], [1994] 1 WLR 1317
Quoted (via Re S) for the two paradigmatic gateways to costs in children proceedings: reprehensible conduct or an unreasonable stance.
In Pringle, this authority supported a disciplined approach: identifying “irritating” or “late” conduct is not enough unless it crosses
the stringent threshold.
Havering London Borough Council v S [1986] 1 FLR 489
Also cited (via Re S) as part of the lineage defining when costs may be ordered. Its role in Pringle was doctrinal: reinforcing
that only truly exceptional litigation conduct justifies departure from the norm.
Re E (children: costs) [2025] EWCA Civ 183 ('Re E')
Re E provided the Court of Appeal’s most recent private law synthesis. Peter Jackson LJ (at [23]) described the practice as a general
rule of no costs, with discretion in “exceptional circumstances”, including reprehensible or unreasonable litigation behaviour; he also
stressed (at [29]) that there is no different costs test for fact-finding hearings.
In Pringle, two points from Re E were pivotal:
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The test is “simple, flexible and well-established”, and should not be diluted into ordinary case-management criticisms.
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Domestic abuse allegations are “sadly common place” and “never likely to lead to a cost award” (Re E at [32]); in Pringle, the Court
similarly separated (a) morally deplorable pre-proceedings behaviour from (b) the stringent litigation-conduct threshold for costs.
The Court also rejected an attempted semantic distinction between Lady Hale’s “unusual” and Peter Jackson LJ’s “exceptional”, holding
that the label does not alter the underlying Re T/Re S test.
3.2 Legal Reasoning
(A) The governing framework: FPR/CPR and the “no costs” norm
The Court reiterated the interaction between:
-
FPR 28.2 (disapplies the civil “costs follow the event” general rule),
while FPR 28.1 preserves a broad discretion to order costs.
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CPR 44.2(4)–(5) (all the circumstances, including the conduct of all parties and whether it was reasonable to raise/pursue issues),
relevant to the threshold question: should any costs order be made?
-
CPR 44.4(3) (factors relevant to the amount if costs are ordered).
Crucially, in children proceedings this machinery is overlaid by the Re T/Re S restraint: the discretion is exercised against a strong
norm of “no order”, departed from only where litigation conduct is truly reprehensible or unreasonably outside the reasonable band.
(B) The first instance errors: one-sided conduct assessment and misallocation of factors
The Court found that the judge below assessed “conduct” for threshold purposes by reference to the father alone.
That was a legal error because CPR 44.2 requires regard to all the circumstances, including the conduct of all parties.
The Court identified matters that should have been weighed, including:
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the mother’s failed application for a fact finding hearing and subsequent attempt to reintroduce similar issues later;
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the judge’s own finding in the transparency judgment that the mother’s publicity aims had already damaged the prospect of C building a relationship with the paternal family;
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that contested applications tended to be agreed or decided in the father’s favour.
The Court also held that the judge treated several points as “mitigation” when setting the amount that properly belonged to the threshold
assessment (whether to order costs at all). This mattered because, once these points are placed in the correct step of the analysis, they
significantly undermine the case for departing from the “no order” norm in the first place.
(C) Why the four “reasons” did not meet the Re T/Re S threshold
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Motivation for issuing proceedings (privacy/reputation):
the judge inferred partial motivation from limited pre-action correspondence. The Court of Appeal criticised reliance on incomplete,
untested correspondence—especially given the same judge’s earlier caution against drawing conclusions from partial inter-solicitor exchanges.
Even if privacy was a partial motivator, it could not plausibly amount to litigation conduct that is reprehensible or unreasonably beyond the band.
-
Late withdrawal of the father’s application:
lateness can cause costs, but late decisions and settlements are commonplace in emotive family litigation; treating them as a gateway to costs
would undermine the established norm and make costs orders routine by the back door. The Court further noted that the mother’s opposition
to withdrawal and her pursuit of further contested issues materially contributed to the continuation and cost of proceedings.
-
Non-attendance at two hearings:
even if the judge doubted the extent of deterioration in the father’s mental state, the hearings involved submissions only; the father was
represented by leading and junior counsel; and no court time was lost. This did not approach the kind of litigation misconduct envisaged by
Re T and Re S.
-
Late concession to a s91(14) CA 1989 order and late attempt to file evidence:
at most low-level procedural issues, and (as the judge accepted) unlikely to have driven substantial costs. These could not rationally
justify a rare departure from the “no order” norm.
(D) Separation between harmful relationship conduct and costs conduct
A key doctrinal clarification is the Court’s insistence that costs are about the parties’ conduct in relation to the proceedings,
not (without more) about morally blameworthy or abusive pre-proceedings behaviour. The father’s “shameful and deceitful behaviour” and his
admissions of emotional abuse were not minimised; rather, the Court held they were the wrong category of considerations for costs, absent a
link to reprehensible/unreasonable litigation conduct.
3.3 Impact
The decision’s likely influence is threefold:
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Re-tightening the threshold in private law children cases:
trial courts are reminded that ordinary procedural shortcomings (lateness, position changes, attendance difficulties) will rarely—if ever—
meet the Re T/Re S test.
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Mandatory “both parties” conduct appraisal at the threshold stage:
a costs application must be evaluated holistically and bilaterally. One-sided scrutiny is an error of principle.
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Analytical discipline between “whether” and “how much”:
factors that strongly indicate the absence of unreasonable litigation conduct should not be relegated to “mitigation” after the court has
already decided to depart from the norm.
Practically, the judgment signals that costs applications in Children Act cases should focus on genuinely extreme litigation misconduct
(for example, deliberately false and maintained allegations, abuse of process, or positions plainly beyond the reasonable range), rather than
turning case-management irritations into costs penalties.
4. Complex Concepts Simplified
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“No order as to costs” norm: In children cases, unlike ordinary civil litigation, the usual starting point is that each party pays
their own costs, to avoid discouraging parties from properly participating in decisions affecting children.
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“Reprehensible or unreasonable” litigation conduct: A very high bar. It is not enough that a party behaved badly in the relationship,
or caused upset, or conducted litigation imperfectly. The conduct must be seriously improper in the way the case was run.
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FPR 28.1 / 28.2 and CPR 44: The family rules remove the civil presumption that the winner gets costs, but the court still has a discretion.
CPR factors guide how discretion is exercised, but are constrained in children cases by the Supreme Court’s high threshold.
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s91(14) CA 1989 order: A restriction requiring a party to obtain the court’s permission before making further applications for a defined period,
typically used to prevent repeated or vexatious litigation.
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Transparency Order (in this case): Despite the name, it functioned to protect the child’s privacy (restricting publicity until C turns 18);
Lord Justice Males noted the terminology can appear counterintuitive.
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Declaration of parentage: A formal court declaration confirming parentage; here it related to administrative needs (including passport issues),
and the father accepted he should pay the costs of preparing that application.
5. Conclusion
Pringle v Nervo reasserts that costs orders in Children Act proceedings are a true exception: they require conduct in the litigation that is
reprehensible or unreasonably outside the acceptable band, assessed on a holistic basis including the conduct of both parties.
The Court of Appeal rejected an approach that treated relatively commonplace procedural matters (late withdrawal, non-attendance at submissions hearings,
late concessions) as sufficient to trigger a major costs liability—particularly where the other party’s conduct materially contributed to escalation and cost.
The broader significance is protective: it helps prevent costs from becoming a punitive lever in private law children litigation, preserving the policy that
the court’s focus remains on child welfare and fair participation, not ordinary “winner/loser” costs consequences.