Factual and Procedural Background
On 2 April 2009, Attorney Nicholls QC renewed orally an application by a father for permission to appeal against a costs order made by Judge Pauffley on 19 December 2008 in private law proceedings under the Children Act 1989. The case concerned the father's application for contact with his 9-year-old son, referred to as the child. Permission to appeal had previously been refused on the papers by Hughes LJ on 5 February 2009.
The order by Judge Pauffley was made on appeal from a decision of District Judge Malik, who on 26 June 2008 allowed the mother's appeal and ordered the father to pay £20,000 towards the mother's costs. The father sought to challenge only the costs order.
The background includes that the father and mother were married in April 1999 and separated in November 2006. After a period of contact during Easter 2007, the mother stopped contact. The father issued an application for a contact order, which was heard nearly a year later by District Judge Malik. The mother appeared in person, having withdrawn her solicitors due to financial reasons. The district judge made an unsupervised contact order, which the mother appealed.
The appeal was allowed by Judge Pauffley, who was highly critical of the district judge's handling of the case, particularly regarding the failure to properly address domestic violence and safeguarding issues. The mother was awarded her costs of the appeal, with the father ordered to pay £20,000.
Legal Issues Presented
- Whether permission to appeal should be granted against the costs order made by Judge Pauffley.
- The principles governing costs orders in appeals within family proceedings, particularly in children cases.
- Whether the judge's exercise of discretion in awarding costs to the mother was appropriate.
Arguments of the Parties
Appellant's Arguments
- The father was not at fault for the district judge's failures, and costs orders in children's cases should only be made if the party has been unreasonable in litigation conduct.
- Defending the appeal process, which involved evidence and a reasoned judgment, could not be considered unreasonable.
- Judges in children cases have broad discretion in how hearings are conducted, and it is difficult for litigants to know when a judge's discretion has been exceeded.
- The father’s lawyers could not be expected to challenge the district judge’s conduct during the hearing, as their primary duty is to their client.
- Reference to established principles from Re T (Order for Costs) and other authorities emphasizing that costs orders in children cases are exceptional and linked to unreasonable litigation conduct.
- Questioning why an earlier High Court judge did not intervene if the district judge's errors were so obvious.
Respondent's Arguments
- The judge’s discretion in awarding costs on appeal is broader than at first instance, as the appeal process allows parties to reassess and possibly make offers to settle.
- The mother won the appeal and sought her costs, which the judge properly awarded.
- The father's opposition to the appeal was not unreasonable to the extent that it would preclude a costs order against him.
- The principles applicable at first instance differ from those on appeal, particularly regarding costs.
- The judge’s decision to order costs against the father was a proper exercise of judicial discretion and would not be overturned on appeal.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Re T (Order for Costs) [2005] EWCA Civ 311 |
Principles governing costs in family proceedings involving children; costs follow the event disapplied; costs only awarded if unreasonable litigation conduct. |
Used to explain that costs orders in children's cases are exceptional and linked to unreasonable conduct, distinguishing first instance from appeal hearings. |
| Gojkovic v Gojkovic (No 2) [1992] Fam 40 |
Costs principles in family proceedings; starting point is costs follow the event but can be displaced. |
Referenced to support that costs orders in family cases involving children are exceptional. |
| London Borough of Sutton v Davis (Costs) (No 2) [1994] 2 FLR 569 |
Costs orders against parents in children cases are exceptional to avoid harming cooperation. |
Supported the principle that costs orders should not interfere with child welfare by punishing parents. |
| Re M (Local Authority's Costs) [1995] 1 FLR 533 |
Similar to above, emphasizing exceptional nature of costs orders in children cases. |
Reinforced the cautious approach to costs in children proceedings. |
| R v R (Costs: Child Case) [1997] 2 FLR 95 |
Unreasonableness must relate to litigation conduct, not the welfare of the child. |
Clarified the focus of costs orders on conduct of litigation rather than child welfare issues. |
| Re C (Contact: Conduct of Hearings) [2006] 2 FLR 289 |
Judges have broader discretion in conducting hearings in children cases than in conventional civil cases. |
Supported the proposition that procedural fairness in child cases differs from ordinary civil cases. |
| Re B (Minors)(Contact) [1994] 2 FLR 1 |
Wide discretion for judges in family cases to conduct hearings as appropriate for the issues and evidence. |
Used to emphasize judicial discretion in family proceedings. |
| Re F-H (Dispensing with Fact-Finding Hearing) [2008] EWCA Civ 1249 |
Discretion whether to hear evidence on disputed facts in family proceedings. |
Reaffirmed judges’ discretion in managing hearings in family law. |
| A County Council v DP and Others [2005] EWHC 1593 |
Factors to consider before deciding on a fact-finding exercise. |
Referenced as authority on judicial discretion in family hearings. |
Court's Reasoning and Analysis
The court carefully analyzed the distinction between first instance hearings and appeals in family law, particularly regarding costs orders. It recognized that while costs orders at first instance require unreasonableness in litigation conduct, appeals involve a broader judicial discretion. This is because parties have the opportunity to reassess their position and make offers to settle during the appeal process.
The court found that the father's arguments, relying on principles applicable at first instance, were misplaced when applied to the appeal context. The mother had won the appeal and sought costs, which the judge was entitled to award as a proper exercise of discretion.
The court acknowledged the wide discretion judges have in family proceedings, including the mode of conducting hearings, and emphasized that the appeal process allows for a different approach to costs than initial hearings.
Ultimately, the court concluded that the appeal against the costs order had no reasonable prospect of success and that the judicial discretion exercised by Judge Pauffley was appropriate and justified.
Holding and Implications
The court REFUSED PERMISSION TO APPEAL against the costs order made by Judge Pauffley. The father's application to challenge the order that he pay £20,000 towards the mother's costs of the appeal was dismissed.
The direct consequence is that the costs order stands and the father must pay the specified sum. No new legal precedent was established by this decision. The ruling underscores the broad discretion judges possess in awarding costs on appeal in family proceedings, particularly in cases involving children, and confirms that such discretion will not be lightly disturbed.