Rule 28.1 of the Family Procedure Rules provides that the court may make such an order as it thinks just.

'The fact that a parent has litigated in an unreasonable fashion may open the door to the making of an adverse costs order; but it does not itself necessitate the making of such an order. There is, at the end of the day, a broad discretion to be exercised having regard to all the circumstances of the case…Careful attention must be paid to all the circumstances of the case and to the factors which, on the authorities I have referred to, indicate that normally it is inappropriate to make such an order-factors which do not simply disappear or cease to have weight merely because the litigation has been conducted unreasonably.'

The judge at first instance had concluded not only that the father had been falsely accused by the mother of sexual and physical abuse, but the mother had manipulated professional and others, including the children who she had sought to recruit in her efforts to create a narrative of sexual abuse. The mother was described as untruthful, dishonest, and manipulative. Consequent to a subsequent welfare hearing, the children were removed from the mother’s care and placed with the father.

The judge at first instance concluded that the mother’s conduct was not exceptional, reprehensible, or unreasonable. The father by the conclusion of the proceedings had spent £367,000 in legal fees in total.

On appeal, the High Court judge noted the high hurdle that any litigant seeking to challenge a decision at first instance must face. This hurdle is described in a series of cases which describe and define the principles upon which an appellate court will interfere, in an area where there is an extremely broad discretion open to the decision maker at first instance.

The Appeal Court found that the mother behaved in an reprehensible manner and awarded costs of £37,000.

It is, of course not enough for the wife to establish that this court might, or would, have made a different order. We are here concerned with a judicial discretion, and it is of the essence of such a discretion that on the same evidence two different minds might reach widely different decisions without either being appealable. It is only where the decision exceeds the generous ambit within which the reasonable disagreement is possible, and is in fact, plainly wrong, that an appellate body is entitled to interfere.

This being an appeal on costs with the leave of the judge, the ordinary rules as to review of the judge’s discretion apply. The court must not be tempted to interfere with the judge’s order merely because we would have exercised the discretion differently from the way in which the judge did. Before the court can interfere, it must be shown that the judge has either erred in principle in his approach, or has left out of account, or taken into account, some feature that he should or should not, have considered, or that his decision is wholly wrong because the court is forced to the conclusion that he has not balanced the various factors fairly in the scale.

This being an appeal on costs with the leave of the judge, the ordinary rules as to review of the judge’s discretion apply. The court must not be tempted to interfere with the judge’s order merely because we would have exercised the discretion differently from the way in which the judge did. Before the court can interfere, it must be shown that the judge has either erred in principle in his approach, or has left out of account, or taken into account, some feature that he should or should not, have considered, or that his decision is wholly wrong because the court is forced to the conclusion that he has not balanced the various factors fairly in the scale.