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COSTS/LEAVE TO REMOVE: Re S (A Child) (Costs of Appeal and Rehearing)

Date:3 NOV 2009

(Family Division; Sir Christopher Sumner; 22 September 2009)

When the marriage ended, the child's time was split between, on the one hand, the Swedish mother, and on the other hand, the father and the paternal grandparents, who looked after the child while the father was at work.

The mother sought to return to Sweden with the child, but was refused permission at first instance, on the basis that the current arrangement was one of shared care. The mother's appeal was allowed; the appeal judge found that the mother had been the primary carer and that the judge below had not only failed to give appropriate weight to the conclusions of the Cafcass officer, but had also failed to take account of the impact of a refusal of permission upon the mother. However, the appeal judge later granted the father a rehearing, not least because the father's recently announced loss of employment would allow him to care for the child to a greater extent. The rehearing resulted in the mother being granted permission to relocate to Sweden. The mother sought her costs of the appeal, of the rehearing and of the costs hearing, a total of £144,725.13. The parties invited the judge to dispense with an oral hearing and to rely on written submissions.

The judge advocated caution in avoiding an oral hearing; an oral hearing focused and refined arguments, and also permitted close control of submissions. A costs order in a family case should be made only if the litigation conduct of the party was unreasonable, not if the party had been unreasonable with regard to the welfare of child; care was needed if the apparent unreasonableness flowed from the personality of the party. Different principles applied to appeals. A respondent to an appeal had the opportunity to take stock and to make offers to compromise the appeal if appropriate; the court therefore adopted a broader discretion in the circumstances of the particular case.

Furthermore, while litigation conduct was a factor, it was not essential for the making of a costs order on an appeal. In this case the original judgment had been fundamentally flawed, in particular in failing to assess the impact on the life of the mother were her application to be refused. The father had failed to offer any compromise after he had received the mother's grounds of appeal, which had identified the major problems with the judgment. No principles were available for the costs of rehearing, but in this case the applicable principles were closer to those on an appeal than to those for a first instance decision. The father had started the rehearing after receiving a strong steer from the appeal judge, two reports adverse to his case, plus influential reports concerning the mother's health and financial situation. Further, there had been litigation misconduct in the father's attempt to denigrate and undermine the mother as a person and as a mother. The issue was not the genuineness of the father's views, but whether, in putting them forward, and in particular the manner in which he conducted the litigation, his litigation conduct had been unreasonable. It had been; the mother was awarded the costs sought.