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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> T (A Child), Re [2002] EWCA Civ 1773 (24 October 2002)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/1773.html
Cite as: [2002] EWCA Civ 1773
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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION (Mr Justice Wilson)
Strand London, WC2 Thursday, 24th October 2002 |
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B e f o r e :
LORD JUSTICE RIX
LADY JUSTICE ARDEN
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| T (A CHILD) |
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(Computer-Aided Transcript of the Stenograph Notes of
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MISS J PARKER Q.C. and MISS D. EATON (instructed by Messrs Collyer-Bristow, London, WC1) appeared on behalf of the Respondent.
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- LORD JUSTICE THORPE: The judgment of the court on the costs appeal is broadly as follows. As a broad generalisation, the assessment of costs by the trial judge at the end of an extended trial will be abnormal. The longer the trial, the more complex the interlocutory appearances, the less reliable is the judicial assessment rather than the specialist assessment of the costs judge. There are undoubtedly virtues in Mr Mostyn's additional complaint, that in this case the judge had to reflect a whole catalogue of interlocutory orders, upon some of which victory seems to have gone one way and upon others of which it seems to have gone the other.
- The second generalisation is that the inhibition on costs orders in Children Act private law cases, expressed in authorities in this court in relation to trials, do not in our view apply to appellate proceedings.
- So what is the outcome of this appeal? Revisiting the battleground below, it remains the case that the appeal leaves undisturbed the outcome on a number of important issues litigated below, such as, the alleged conspiracy between the mother and PT and all the evidence as to the father's failings, which ultimately succeeded, either as a result concessions or proof. On the other hand, the existence of alienation or the need to investigate its existence was either dismissed or not recognised by the judge at trial. To that extent the husband's condemnation in costs below has been undermined there is a need for a reassessment of the costs of trial.
- Coming to the costs of appeal, at first blush the father has succeeded and should be entitled to his costs of the appeal. On the other hand, he has failed, insofar as he has put his case too high, on the extent of the mother's responsibility, and he has not succeeded in some subsidiary issues that he has pursued. Fairness would suggest that his success in this court should be for a proportion rather than the totality of his costs.
- We have reached the conclusion that it is undesirable to endeavour some sort of mathematical apportionment of the costs of trial. Some apportionment of the costs of appeal would manifestly be easier. But balancing one consideration against the other, broad justice can be done by saying that there should be no order for costs either below or in this court. If further support be needed for such an outcome, it is to be found in the general proposition that the imposition of the obligation on one parent to pay the legal costs of another certainly does not contribute to future good relations between them, and if the formula which we adopt makes any contribution to improving relations between these parties, then that would be very welcome. The parties have spent extravagantly, if not inordinately, upon litigation in the past. I would think that there must come a time when they ask themselves the question: is this really the way we want to resolve parental difficulties between us? It may be that it would be hard to find a case with less promise for mediation, but it is something that the parties might well consider. Could they not operate more effectively as parents if we turn to a highly experienced and qualified family mediator rather than to highly experienced and qualified litigators?