The Court of Appeal has made no order as to the costs of an appeal arising from a mother’s application to relocate the parties’ adolescent children to a third jurisdiction. It said the costs of the earlier High Court hearing should be determined by that court within the judicial separation proceedings.
The costs decision followed an earlier Court of Appeal judgment, delivered on 28 October 2022, which set aside the High Court orders and remitted the relocation application for a hearing and determination de novo. The High Court’s order awarding costs to the father was also set aside.
The mother sought her appeal costs, arguing that the relocation decision had been set aside and that the usual rule of costs following the event should apply. She also submitted that there should be no costs order for the earlier High Court hearing because the matter had not been finally determined. The father submitted that neither party should receive an order for costs.
In a judgment delivered on 24 January 2023, Ms Justice Máire Whelan said the usual starting point in family law proceedings is that each party bears their own costs. She noted that both parents were deeply attached to the children and held sincere, opposing views about their welfare. The appeal costs, she said, followed a sequence of events after the High Court’s oral hearing that the father had neither caused nor contributed to.
The court considered whether the principles in Veolia Water, which can support costs consequences where unmeritorious litigation conduct materially increases costs, applied. It found no adequate evidence that the father’s conduct had increased the appeal costs or that he had advanced arguments found to be unmeritorious.
The judgment said both parties had contributed to events that led to the appeal, particularly by failing to engage with the trial judge in a timely and effective way to clarify the purpose and parameters of proposed meetings with the children. Those omissions contributed significantly to the need to set aside the High Court orders and rehear the relocation application. The court also criticised the mother’s unrealistic estimate of the appeal hearing time and said her presentation of the appeal caused it to run into a second day.
The Court of Appeal made no order as to the costs of the appeal. It directed that the costs of the High Court relocation application be determined by the High Court either after that application or at the end of the substantive judicial separation proceedings. The relocation question itself remains for the High Court to rehear; the appeal judgment did not decide where the children should live.