Should a costs order be varied when a subsequent appeal reverses the substantive outcome? The Court of Appeal holds that where the fundamental basis of earlier success remains undisturbed by a later appellate decision on different grounds, the original costs order should stand.
Variation of costs orders on appeal will not be granted retrospectively where a party’s earlier success was not materially undermined by a later decision, particularly where the later appeal succeeded on previously unargued grounds.
In appeals from the Family Division, although the general rule that the unsuccessful party pays the costs does not automatically apply (CPR 44.2(3)(a)), the overall success in the litigation may be the decisive factor when determining costs.
The court may order a payment on account of costs where there is no good reason to the contrary, and a reasonable proportion of the total claimed costs will generally be considered appropriate under CPR 44.2(8).
The court does not have jurisdiction to vary or offset costs orders made by a higher court, and any set-off between opposing parties’ costs liabilities across distinct orders cannot be effected in the absence of express authority.
In determining the timeframe for payment of a costs order under sanctions constraints, the court may consider practical impediments faced by the paying party but will balance those against the need for timely compliance, rejecting both unreasonably short and excessive delays.
