Tuesday, March 12, 2013

KS v ND (Schedule 1: Appeal: Costs): The madness of reckless litigation

Mr Justice Mostyn
KS v ND (Schedule 1: Appeal: Costs) [2013] EWHC 464 (Fam) is yet another salutary tale of of the costs consequences of "reckless and foolhardy" litigation.

The case involved an appeal in Schedule 1 Children Act proceedings where the child is now 17. Thus, as Mr Justice Mostyn pointed out, the parties were only arguing about the cost of keeping and educating their son in sixth form and at university.

Notwithstanding this (and the plea of Baron J, who granted permission to appeal, to settle the case), the parties managed to run up legal costs of about £125,000, a figure which completely dwarfs the sums they were arguing about. As Mr Justice Mostyn wearily lamented:
"Time and again judges point out the madness of litigating in this way; and time and again their admonitions fall on deaf ears. At the end of the day all we can do is to express concern about such extreme folly, and if it is ignored then the parties will have to live with, and take responsibility for, the consequences of their decisions."
The consequences here were described by Mr Justice Mostyn as "calamitous for both parties".

Briefly, the appeal concerned an order varying an earlier order made in 2005. The mother was not happy with the varied order, and sought permission to appeal. Mrs Justice Baron granted permission, but only in respect of a school fees award and the decision that there should be no order as to costs.

I will not discuss regarding the appeal in respect of the school fees award, save to say that it was dismissed. The costs appeal is perhaps more interesting, particularly as Schedule 1 proceedings are excepted from the "general rule of no order as to costs principle" that applies to almost all family financial proceedings.

It was argued on behalf of the mother that she should have been awarded costs in the light of 3 factors:
1) She was the effective winner;

2) The father was guilty of litigation misconduct; and

3) The economic impact on her is such that she must have all or part of the costs met.
In respect of these factors Mr Justice Mostyn found:
1) It was not clear that the mother had "won" the case - indeed, an "objective analysis would suggest that overall the father was rather more successful than the mother".
2) The only 'litigation misconduct' by the father occurred prior to the issue of proceedings, but this had no direct causal connection to the later generation of costs.
3) The mother's argument on economic impact did not have merit "since the parties find themselves in a comparably disastrous position".
Accordingly, the mother's appeal on costs was also dismissed.

As a (slightly ironic) footnote, the father sought the costs of the appeal. Mr Justice Mostyn stated that in his judgment on any financial remedy appeal, including an appeal in Schedule 1 proceedings, costs should prima facie follow the event, and he found no reason why the father should not have his costs. Accordingly, he awarded him £13,000, although as an "act of mercy" to the mother he ordered that this should be paid in 26 monthly instalments of £500, which would be deducted from the maintenance paid by the father.


  1. Northern Lights13 March 2013 at 01:04

    I like Nick Mostyn's way with words: "since the parties find themselves in a comparably disastrous position".

    As a matter of interest, John, why are Schedule 1 proceedings subject to a different approach as to costs?

    1. I think it is because there is often a financial imbalance between the parties in Schedule 1 proceedings, and it was therefore felt best if the court retained a discretion as to whether to make a costs order (remember, Schedule 1 applications are made on behalf of the child, usually by the other parent, and the court cannot make a financial award in favour of that parent).

  2. Northern Lights13 March 2013 at 13:13

    OK, John, that makes sense. Thanks.


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