FA-2024-000131 - [2025] EWHC 2595 (Fam)

Fecha: 13-Oct-2025

The Law

The Law

I set out the applicable law in paragraphs 6-10 of Mainwaring v Bailey [2024] EWHC 2614 (Fam). For the benefit of both parties, I set out the relevant paragraphs herein:

The Rules

The High Court sitting as an appeal court has the power to make an order for costs when sitting as an appeal court by reason of FPR r.30.11(2)(e).

Further, on hearing an appeal, the appeal court has all the powers of the lower court under r.30.11(1).

The lower court's powers in relation to costs in "financial remedies proceedings" are prescribed by r.28.3. FPR 28.3 states as follows:

(1)

This rule applies in relation to financial remedy proceedings.

(2)

Rule 44.2(1), (4) and (5) of the CPR do not apply to financial remedy proceedings.

(3)

Rules 44.2(6) to (8) and 44.12 of the CPR apply to an order made under this rule as they apply to an order made under rule 44.3 of the CPR.

(4)

In this rule –

(a)

'costs' has the same meaning as in rule 44.1(1)(c) of the CPR; and

(b)

'financial remedy proceedings' means proceedings for –

(i)

a financial order except an order for maintenance pending suit, an order for maintenance pending outcome of proceedings, an interim periodical payments order, an order for payment in respect of legal services or any other form of interim order for the purposes of rule 9.7(1)(a), (b), (c) and (e);

(ii)

an order under Part 3 of the 1984 Act;

(iii)

an order under Schedule 7 to the 2004 Act;

(iv)

an order under section 10(2) of the 1973 Act;

(v)

an order under section 48(2) of the 2004 Act.

(5)

Subject to paragraph (6), the general rule in financial remedy proceedings is that the court will not make an order requiring one party to pay the costs of another party.

(6)

The court may make an order requiring one party to pay the costs of another party at any stage of the proceedings where it considers it appropriate to do so because of the conduct of a party in relation to the proceedings before (whether or during them).

(7)

In deciding what order (if any) to make under paragraph (6), the court must have regard to –

(a)

any failure by a party to comply with these rules, any order of the court or any practice direction which the court considers relevant;

(aa) any failure by a party, without good reason, to—

(i)

attend a MIAM (as defined in rule 3.1); or

(ii)

attend non-court dispute resolution;

(b)

any open offer to settle made by a party;

(c)

whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;

(d)

the manner in which a party has pursued or responded to the application or a particular allegation or issue;

(e)

any other aspect of a party's conduct in relation to proceedings which the court considers relevant; and

(f)

the financial effect on the parties of any costs order.

(8)

No offer to settle which is not an open offer to settle is admissible at any stage of the proceedings, except as provided by rule 9.17.

(9)

For the purposes of this rule 'financial remedy proceedings' do not include an application under rule 9.9A.

Practice Direction

Practice Direction 30A specifically deals with Respondent's costs on permission applications. It states as follows:

4.22

In most cases, applications for permission to appeal will be determined without the court requesting –

(a)

submissions from; or

(b)

if there is an oral hearing, attendance by, the respondent.

4.23

Where the court does not request submissions from or attendance by the respondent, costs will not normally be allowed to a respondent who volunteers submissions or attendance.

Where the court does request –

(a)

submissions from; or

(b)

attendance by the respondent,

the court will normally allow the costs of the respondent if permission is refused.

Case Law

10.

In H v W [2014] EWHC 2846 (Fam), Mrs Justice Eleanor King DBE (as she then was) considered and adopted 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. Having done so she stated in relation to the financial remedy appeal then before her:

"20.

The essential feature of the proceedings in the present case is that this is an appeal. Appeals can be made against many different orders and may arise out of many different types of proceedings. Appeals can be launched against a whole range of first instance orders which will have been governed at first instance by any number of rules and procedures. Appeals are a separate category of hearing in respect of which specific rules apply. An appeal is separate from the proceedings the subject of the appeal and is governed by its own rules (here FPR r.30 which, inter alia, gives the appeal court the power to make an order for costs […]).

21.

Respectfully adopting the approach of Wilson LJ in Judge and in Baker, an appeal is in my judgment in connection with and not in financial remedy proceedings and therefore is not subject to FPR r.28.3(5). Nor is the court bound by the general rule that costs follow the event.

22.

It follows that this as this court approaches the exercise of its discretion when deciding what, if any, order for costs it should make it starts 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."