(Family Division; Munby J; 13 March 2009)
Following the decision in Re N (Payments for Benefit of Child)  EWHC 11 (Fam), the court gave directions for a costs hearing a few weeks later. The father applied to the Court of Appeal for permission to appeal the substantive decision from the Court of Appeal, and argued before the judge that the costs hearing should be adjourned until after the hearing of this appeal. The father claimed that his costs amounted to about £38,000, but was proposing that the costs be summarily assessed in the total sum of £2,500, and that this sum be paid by the mother. The mother did not provide even rough estimates of her costs, although she did state that they were substantial, but in any event she sought payment of her entire costs by the father, with a minimum contribution of 50%.
Even if the parties had agreed to an adjournment of the costs hearing until after the appeal was resolved, the court would not have adjourned the hearing for that reason. The decision on the costs to date had nothing to do with the appeal proceedings and could not be affected by the outcome of the appeal. At least in relation to some matters, neither party had acted with very much wisdom or common sense, and despite their strenuous arguments to the contrary, this was not a case in which either party could plausibly claim to have been the winner overall. The fair just and reasonable outcome was that there should be no order as to costs; this would best reflect the overall justice of the case and best reflect the reality that each party had won on some but had lost on other important issues and that neither party could convincingly put themselves forward as having been, even on balance, the 'winner'.