In the case of K v W (Respondent’s Costs on Application for Permission to Appeal) [2023] EWFC 300 (B) (25 October 2023), HHJ David Williams outlined the costs implications for unsuccessful appeal attempts within the Family Court. The ruling ordered the Mother to pay the Father’s legal costs totalling £6,021.
The Appeal
Within the judgment, HHJ David Williams referred to the Appellant and Respondent as the Mother and Father. The Mother made an oral application to appeal the decision of the District Judge at the handing down of judgment hearing, which was refused. The Mother filed an Appellant’s notice for leave to appeal.
The Father was required to file a skeleton argument in response to the appeal and attend the hearing. At the permission to appeal hearing, the Appellant’s notice was refused on all grounds.
Costs of the Appeal
The Father filed a Schedule of Costs in advance of the hearing seeking a costs order against the Mother in the sum of £6,021. The Father submitted that as his attendance at the hearing was requested by the Court and due to the application being unsuccessful, a costs order should be ordered in his favour. The Father’s Schedule of Costs included £2,000 for Counsel’s brief fee and £1,000 for drafting the skeleton argument.
The Mother opposed the costs order and submitted that she had already paid the sum of £20,000 to Dr Proudman for drafting her skeleton argument and a £8,000 brief fee for attending the hearing. The Mother further submitted that she had been struggling financially and had only £100 in her bank. Nonetheless, her financial contributions to her own legal costs raised questions about her ability to pay the costs submitted by the Father.
Paragraph 4.24 of Practice Direction 30A states:
“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.”
In this case, the Court requested that the father file a skeleton argument and attend the hearing. For the Court to depart from the usual position as set out in the Practice Direction above, there must be a compelling reason. The Court held that “The mother’s alleged impecuniosity is not a reason to depart from the normal position on costs, although it may be relevant to how or when any costs order is to be satisfied.”
Furthermore, HHJ David Williams stated “it is clear from the mother’s own case that she either had or has been able to access funds of circa £30,000 in order to pay the fees of her counsel, Dr Proudman. If the payment of those fees has brought about the mother’s impecuniosity, as alleged, that cannot be a reason not to make a costs order in favour of the father.”
The Judge held that as the Mother was previously refused permission to appeal and knew the risks of having to pay the Father’s costs, there was no reason for the Father to be left out of pocket. When assessing the costs, the Judge concluded that the costs claimed by the Mother were significantly higher than the costs claimed by the Father. The Judge made reference to both fees for the skeleton arguments, noting that the Mother’s was 10 times more than the Father’s. An order for costs was ordered in favour of the Father and the full sum of£6,021 was held to be reasonable and proportionate.
Katie Spencer is a Paralegal Apprentice in Clarion’s Costs and Litigation Funding Team. You can contact her on 07741 988925 or at katie.spencer@clarionsolicitors.com.