Re E (Children: Costs) [EWCA] Civ 183

Samuel Davis is successful before the Court of Appeal in Re E (Children: Costs) [EWCA] Civ 183. This significant decision deals with the applicable cost principles following a fact-finding hearing in family proceedings. 

In Re E (Children: Costs) the Court of Appeal has allowed (in part) the Father’s appeal against a ‘no order as to costs’ decision following a fact-finding hearing where ‘extreme allegations’ that ‘completely transformed the proceedings’ were made. 

The appeal raised questions about the correct approach in private law proceedings to fact-finding cost decisions, and raised issues (which were not determined in this appeal) about the possibility of cost recovery against the Lord Chancellor when one party is legally aided for a fact-finding hearing. 

Significantly the Court of Appeal has confirmed:

1. That costs orders can be made in children proceedings in exceptional circumstances, including where the behaviour of one party has been unreasonable or reprehensible.
2. That there should be no distinction, for cost purposes, between public and private law proceedings.
3. That the previous approach of ‘ring-fencing’ fact-finding hearings for cost purposes (as set out in Re J (Costs of Fact-Finding Hearing) [2009] EWCA Civ 1350, [2010] 1 FLR 1893) has not survived the Supreme Court decision of Re T (Children) (Costs: Care Proceedings: Serious Allegation Not Proved) [2012] UKSC 36 in relation to private law proceedings.
4. That the decision in A Mother v A Father [2023] EWFC 105(B) so far as it related to costs was wrong.
5. That there is no basis for penalising a party in costs that fails to prove an allegation of rape.
6. That the belief of a party is not a defence to a costs application where there has been unreasonable behaviour.
7. That extreme allegations that transform proceedings can lead to a cost order, particularly when combined with other forms of unreasonable behaviour. 

Re E (Children: Costs) [EWCA] Civ 183 judgment

Samuel Davis acted for the successful appellant father. 

3rd Mar 2025

Samuel Davis

Call 2016