Bean, King and Moylan LJJ. Costs judgment following the H’s successful appeal – judgment on appeal here, summary of the decision appealed here – during which the court considered applications for costs made by both parties and an LSPO previously made. (Summary of the decision to make an LSPO here

The respondent W sought an order for costs of £425,000 against the appellant H, made up of £175,000 paid by her under an LSPO order and her costs of the appeal rounded down to £250,000. The W proposed that the order is met by a reduction in the ‘needs’ order made by the court, notwithstanding that the W was not successful in resisting the appeal and made no offer of settlement in advance of the hearing. In support of her application for costs in circumstances where the other parties’ appeal was successful, the W relied on the H’s litigation misconduct.

The general rule that the unsuccessful party will be ordered to pay the costs of the successful party does not apply in relation to an appeal made in connection with proceedings in the Family Division, per CPR 44.2(3)(a). Nonetheless, the W’s application for costs was refused.

The H also sought orders for costs against the W on the basis that he had been successful in achieving a much better outcome on appeal. The court considered Wilson LJ’s judgment in Baker v Rowe [2010] 1 FLR 761 that ‘the fact that one party has been unsuccessful … will often properly count as the decisive factor in the exercise of the judge’s discretion’, notwithstanding that CPR 44.2(2)(a) does not apply.

The H succeeded on a number of grounds but lost on others, he did achieve a significant increase in percentage terms of the award, although this was significantly more limited than the overall award he sought. The court made findings of litigation misconduct against the H in relation to the appeal, including numerous unmeritorious, ancillary applications made by him which resulted in an increased time estimate.

The court considered that a costs order was appropriate. They referred to the LSPO of £175,000 made by Peel J as a sum felt to be adequate to run the appeal. The costs of the LSPO application itself were £17,378. The court ordered the W to pay the H £175,000 towards the costs of appeal (that sum already having been received by the H’s solicitors) and £17,378 in relation to the application and hearing for an LSPO.