Cost in the Court of Appeal

H v H CACV 42/2002 per Rodgers VP


17. At the conclusion of the hearing, Ms Lau argued that the usual order in custody proceedings even on appeal was that there should be no order as to costs. In the absence of a fully prepared argument on this aspect the parties were invited to send in written submissions.

18. In the written submissions both parties have drawn our attention to a number of cases which, in effect go to the same point. The Court generally does not order costs in custody cases. The reasons are, in my view most cogently expressed in London Borough of Sutton v Davis (Costs) (No.2) [1994] 2 FLR 569 where Wilson J. said in relation to the to the reasons which underlay the general approach not to order costs in children cases at 570H-571C:

“Where the debate surrounds the future of a child, the proceedings are partly inquisitorial and the aspiration is that in their outcome the child is the winner and indeed the only winner. The court does not wish the spectre of an order for costs to discourage those with a proper interest in the child from participating in the debate. Nor does it wish to reduce the chance of their co-operation around the future life of the child by casting one as the successful party entitled to his costs and another as the unsuccessful party obliged to pay them. The proposition applies in its fullest form to proceedings between parents and other relations; but it also applies to proceedings to which a local authority are a party … But the proposition is not applied where, for example, the conduct of a party has been reprehensible or the party’s stance has been beyond the band of what is reasonable: Havering LBC v S [1986] 1 FLR 489 and Gojkovic v Gojkovic … at pp.60C-D…”

19. His remarks have been referred to with approval in the Court of Appeal: see for example R v R (Costs: Child Case) [1997] 2 FLR 95. It would seem that this approach has been followed in respect of appeals to the Court of Appeal. Whilst different considerations may apply to appeals because the parties have had the benefit of “one day in court” and thus costs might be unnecessarily incurred, I consider that unless it could be said that an appeal should never have been brought then the same principles would be applicable. Indeed, the argument on behalf of the respondent is put on the basis that the “appeal had very little prospect of success.” Whilst I have had no difficulty in reaching the conclusion as to the outcome of the appeal, I would in this case still apply the same principle in relation to costs, primarily for the reason that it is in the daughter’s interest that there be as little antagonism between the parties as possible. It is to be hoped that the parties can now work together in the daughter’s interest and avoid returning to court to continue battles over custody, care and control which hopefully will have been resolved. The order I would make would therefore be that there be no order as to costs.