A summary of the substantive appeal decision to which this costs judgment relates can be found here.

A blog post discussing litigants in person and the FRC can be found here.

Henke J ordered the husband to pay the wife’s costs assessed on a standard basis following his ‘hopeless appeal’. In response to the husband’s plea that he should be treated as a litigant-in-person and he did not understand the Family Procedure Rules, Henke J was emphatic that litigants in person are expected to comply with the procedural rules as much as represented parties.

Background

Following the appellant husband’s unsuccessful appeal in Mainwaring v Bailey [2024] EWHC 2296 (Fam), the respondent wife made an application for indemnity costs. Her total costs in responding to the appeal were £20,240.06. The husband resisted the application for costs, and urged Henke J to make no order for costs. The husband’s costs were said to amount to £18,341 ([2])

Submissions

The wife argued that (i) costs should follow the event of this ‘hopeless appeal’ and (ii) the husband’s litigation conduct significantly contributed to the costs of the appeal ([3]).

The husband contended that Henke J had a discretion as to costs and ought not to make an order against him. It was argued that Henke J ought to disallow the wife’s costs prior to 25 July 2024 (when Henke J made a directions order to enable the appeal hearing to proceed) as before that date the wife was not obliged to respond to the appeal. Given that it was always the wife’s case that it was a hopeless appeal, the husband argued that it would have been reasonable for her not to engage with the process before being required to do so by the court ([4]).

The husband submitted that he ‘essentially self-represented’, filing documents without court direction or permission because he did not understand the Family Procedure Rules. In addition, the husband argued the costs claimed were excessive ([5]).

Relevant law

Henke J set out FPR 28.3 ([8]) and Practice Direction 30A (which states that where the court requests submissions from or attendance by the respondent on a permission application, the court will normally allow the costs of the respondent if permission is refused) ([9]).

Henke J then repeated the words of Eleanor King J DBE (as she then was) in H v W [2014] EWHC 2846 (Fam), adopting the reasoning of Wilson LJ (as he then was) in Judge v Judge [2008] EWCA Civ 1456 and Baker v Rowe [2010] 1 FLR 761. Eleanor King J DBE stated at [22] in H v W that in appeal proceedings, the court approaches the exercise of its discretion when deciding what, if any, order for costs it should make with a clean sheet. The success or failure of a party in the appeal whether in whole or in part may not always be determinative but is capable of being a decisive factor in the exercise of that discretion ([10]).

Decision

Henke J described H’s appeal as ‘hopeless’, so much so that she considered certifying it as being totally without merit and refusing permission to appeal. Because she heard full argument, she decided to dismiss it ([11]).

It was unattractive for the husband to argue that the appeal was so evidently hopeless the wife need not have responded, considering that the husband had at no point conceded that the appeal was hopeless during the hearing ([12]). The husband chose to pursue a meritless appeal to the Nth degree ([13]).

The wife had engaged with the process, filing her skeleton argument as directed and attending the appeal hearing with counsel. Given the way the husband pursued the appeal, her engagement with the process was necessary and proportionate ([14]).

The husband’s litigation conduct had been unreasonable as, by way of example, he added two documents to his counsel’s skeleton argument in breach of Henke J’s directions order and he made an application to submit fresh evidence which in the event he did not rely upon. These breaches added to the wife’s costs ([16]).

Henke J described herself as ‘troubled’ by the husband’s submission that he was in effect a litigant-in-person; given that he had both solicitor and counsel representing him he could not be described as self-representing notwithstanding that he took some steps himself within the appeal process to save money ([17]). Henke J reminded herself that the Court of Appeal has held that litigants in person as much as a represented party are required to comply with the procedural rules on appeal, referring to McFarlane LJ (as he then was) at [40] in Re D (Appeal: Procedure: Evidence) [2016] 1 FLR 249 ([18]):

‘The fact that an applicant for permission to appeal is a litigant in person may cause a judge to spend more time explaining the process and the requirements, but that fact is not, and should not be, a reason for relaxing or ignoring the ordinary procedural structure of an appeal or the requirements of the rules. Indeed, as I have suggested, adherence to the rules should be seen as a benefit to all parties, including litigants in person, rather than an impediment.’

The outcome of the appeal and the husband’s litigation conduct were significant factors when placed on a ‘clean sheet’ which led Henke J to conclude that the husband should pay the wife’s costs of the appeal. Those costs ought not be limited to those incurred after 25 July 2024 as this was always a hopeless appeal; the husband should pay the costs from Keehan J’s order of 16 April 2024 setting down the rolled-up appeal hearing. The wife’s engagement thereafter was not only reasonable but necessary and proportionate ([19]).

Henke J reminded herself of [83] in Arcadia Group Brands Ltd v Visa Inc ([20]):

‘83. The judge had a wide discretion as to costs but I consider that, in awarding costs on the indemnity basis rather than the standard basis, the judge made an error in principle. The weakness of a legal argument is not without more, justification for an indemnity basis of costs, which is in its nature penal. The position might be different if proceedings or steps take[n] within them are not only based on a plainly hopeless case but are motivate[d] by some ulterior commercial or personal purpose or otherwise for purely tactical reasons unconnected with any real belief in their merit.

84. The claimants' arguments on limitation have not been associated with culpable motive or improper purpose or otherwise such as to amount to an abuse …’

The husband’s litigation conduct was not motivated by personal purpose or tactical advantage but, rather, he pursued the appeal in the manner of a proverbial drowning man. The appropriate basis for the assessment of costs was the standard basis ([21]).

No deductions were made from the wife’s costs. The appropriate award was £16,192.48 inclusive of VAT, representing 80% of the wife’s costs. That sum was proportionate to both the issues raised and the manner in which the husband pursued this appeal ([22]).