Re D (Costs of Appeal: Application to Vary or Revoke Order) [2023] EWHC 1244 (Fam) – The Honourable Mr Justice Cobb

This case concerns an application to vary/revoke a costs order made in concluded proceedings; however, in the author’s opinion is interesting in that the background involves re-opening a fact-finding hearing.

The background to this case is (paragraph 2) within the CA 1989 proceedings at first instance, a District Judge had made a factual finding in 2015 that the father had sexually abused D on a number of occasions.  Francis J concluded that “there was a serious procedural irregularity in the proceedings in the lower court” and a “serious risk” that the decision was wrong (see [2020] EWHC 1167 (Fam) at [77]). He remitted the substantive CA 1989 application to me for re-hearing. He described the case as “a wholly exceptional case”; I agree. At that time of allowing the appeal, Francis J did not deal with the question of costs of the appeal as (he later observed): “so much would depend upon the findings made by the High Court Judge who was to conduct the re-hearing”.

Paragraph 3 –  I conducted a new fact-finding hearing over a number of days in the spring of 2021, delivering a lengthy and detailed judgment on 14 May 2021. On the evidence, I did not find that the father had sexually abused his daughter. I made a wide range of findings about both parents, notable among them is that:

“The mother allowed her pre-existing feelings of hostility towards the father, playing out against a backdrop of difficult ‘life stresses’, to influence and determine to an ultimately insupportable degree her assessment, and reporting, of what her daughter had said to her. Very soon she was caught up in what she genuinely perceived was an ‘horrendous’ (her word) situation in which professionals were actively validating her concerns, and advising her to protect her daughter from abuse.”

(Paragraph 5) Following the re-hearing the case was remitted back to Francis J on the issue of costs he dealt with this on paper and circulated a draft judgement on 3 November 2021 the mother responded to the draft judgement on 25 November 2021 stating:-

“I fully accept the Court has a wide discretion and is ultimately entitled to find that I should be required to pay a sum of money towards the Father’s costs, however, I am unclear as to why I should be considered liable for half of the costs incurred by the Father during the time that the Guardian opposed the Father’s appeal as I did between November 2018 and January 2020. 

I understand that in Mr Justice Francis’ Judgement I should have changed my position in light of the support from the Guardian (as of 6th January 2020) and I accept this decision”.

(Paragraph 6) The finalised judgment on costs was in fact handed down on 19 January 2022 (“the costs judgment”) and on that day Francis J ordered that the mother should pay one-half of the father’s costs of the appeal. This was assessed at c.£76,000. Francis J gave the mother 24 months to pay (payment is therefore due by 18 January 2024) and directed that no interest was to accrue on the award in that period. After the delivery of the costs’ order and judgment, the mother contacted Francis J (by e-mail to his clerk) on 21 February 2022 in these terms:

“I feel I must make the Court aware that I am at a loss in how I pay for this costs award. I have no available resources in order to meet this costs award to the father, this whole case has cost me, including the costs award, in excess of £200,000. My lifesavings have gone and I am in debt from the ongoing proceedings, all funds which have been allocated to the ongoing proceedings. Following your costs award made to the [father], I simply cannot afford to pay this sum of money in its entirety and after discussing the options available to me, I am left with the dire potential outcome of having to pursue bankruptcy if I cannot raise the funds”.

In January 2023 the mother applied to vary the order for costs initially she used the wrong procedure however the case proceeded on the basis that the court could exercise its power under rule 4.1(6) of the Family Procedure Rules 2010 (‘FPR 2010’) to “vary or revoke” this costs order if it was considered appropriate.

In dealing with this matter at paragraph 18 the Learned Judge posed himself the following Questions for determination:-

  1. i) Should the mother have appealed Francis J’s order? Is the mother’s current application effectively an appeal against that order? 
  2. ii) Is the mother entitled to seek variation/revocation under Rule 4.1(6) FPR 2010?

iii) Should this application for variation or revocation have been remitted to Francis J?

  1. iv) What test should be applied on an application under rule 4.1(6) FPR 2010?
  2. v) Does power exist for the court to suspend enforcement of the costs order?

The Learned Judge then recites portions of the judgement from which it is evident that the mother says in terms that she has not savings and no resources to pay a costs order.

At paragraph 22 the Learned Judge says _”where a party alleges that a decision of the court is wrong, or unjust because of a serious procedural or other irregularity, then the proper course would be to seek permission to appeal[9] that decision; if successful on one or other argument, the appeal will be allowed: rule 52.21(3) Civil Procedure Rules 1998 (‘CPR’). Permission will only be granted where (a) the court considers that the appeal would have a real prospect of success; or (b)  there is some other compelling reason for the appeal to be heard (rule 52.6 CPR).”

At paragraph 23 In this case, the mother has argued that the costs order was made without proper regard to her financial situation and was unfair in penalising her for opposing an appeal when, for an extended period during the litigation, the Children’s Guardian had taken a similar position.

There follows consideration of the legal position so far as the extent of the powers and in particular whether they apply to final orders – at paragraph 35 the Learned Judge concludes Neither counsel addressed these issues before me at any length (or at all), and the hearing had proceeded on the basis that rule 4.1(6) FPR 2010 did indeed provide a route to a potential remedy for the mother. However, it is important that the parties recognise the somewhat contentious jurisdictional platform on which the mother’s claim was in fact positioned.”

Thereafter at paragraph 39 he says:-

In light of these authorities, I apply the following principles to this application:

  1. i) The welfare of D is relevant but not the paramount consideration on this application;
  2. ii) Although the court has a reasonably broad discretion to vary or revoke an order, that discretion is likely to be exercised only where:
  3. a) there has been fraud;
  4. b) there has been a material change of circumstances since the order was made;
  5. c) the facts on which the original decision was made have been misstated (innocently or otherwise); this would include a situation where there has been material non-disclosure;

and/or

  1. d) there had been a manifest mistake on the part of the judge in formulating the order.

iii) In exercising that discretion, a court should, in my judgment, have clear regard to the following principles:

  1. a) The court’s power under section 31F(6) of the 1984 Act (and I suggest, by analogy, rule 4.1(6) FPR 2010) is not “unbounded”: per Baroness Hale in Sharland v Sharland [2015] UKSC 60at [41]; it should be subject to “principled curtailment” (per Rix LJ at [39](i) in Tibbles );
  2. b) The discretion should be exercised judicially and not capriciously; it must be exercised in accordance with the overriding objective (rule 1 FPR 2010), that is to say, “enabling the court to deal with cases justly, having regard to any welfare issues involved”;
  3. c) It is undesirable to allow litigants two bites at the cherry; I should be wary not to allow a litigant to re-litigate afresh a matter which has already been decided;
  4. d) This avenue should not be used to undermine or subvert the proper route of appeal, 
  5. e) Discretion is likely to be more sparingly exercised in relation to a final order as opposed to a procedural, interlocutory, injunctive or case management order.

At paragraph 49 the Learned Judge says – although I find that I have jurisdiction under rule 4.1(6) FPR 2010 to vary or revoke the order, I am not, however, satisfied that the mother has established a proper basis to enable me to do so. In short, she has not demonstrated in my judgment a sufficient change in circumstances since the order was made (or other basis identified in §39 above) which would enable me, in the exercise of my discretion, to revoke or vary the costs order.

The decision rejected the mother’s arguments as follows:-

Firstly, inability to pay – whilst Francis J did not have detailed financial information he was aware of the parties’ respective financial circumstances; and

Secondly, rise in cost of living, whilst there had been a rise it affected both parties “who are now relatively worse off”; and

Thirdly, impact on welfare of D – Francis J was aware that I found the mother to be a “temperamental” and “emotional” woman. I accept that the costs order may well have aggravated the mother’s stresses, however I do not accept that the imposition of the costs order has so materially increased those stresses that:

  1. a) This of itself is having an adverse impact on D;
  2. b) That even if it was, that this was not foreseen by Francis J at the time he made the costs order;
  3. c) This is in itself a sufficient reason for revoking or varying the order.

It is the author’s view that this case provides and interesting analysis of the court’s power to revoke or vary an order including a final order and the exercise of that power.

It is a power which for the reasons set out in the judgement will only be used sparingly but in certain cases it may be the better a preferable route to appeal, as there is no need to establish that the judge at first instance was wrong.

It also appears that it may be of general application when considering the making of applications for costs order at the conclusion of Children Act Proceedings generally.

Miss Jo Ashwell

Trinity Chambers

26 May 2023