B v B (Challenge to an Arbitration Determination) (Costs) [2026] EWFC 198 (B)

[2026] EWFC 198 (B)

Case No ZW25P00658

IN THE FAMILY COURT AT WEST LONDON

West London Family Court

Gloucester House, 4 Duke Green Avenue,

Feltham, TW14 0LR

Date 17 July 2026

Before

His Honour Judge Willans

Between

BApplicant

BRespondent

Judith Murray KC (instructed by Kingsley Napley LLP) for Applicant

Olivia Magennis (instructed by Ribet Myles LLP) for Respondent

JUDGMENT NO.2: COSTS

[1]On 16 June 2026 I handed down judgment in this matter. This is published on the National Archives as B v B (Challenge to an Arbitration Determination)

[2026] EWFC 144 (B)

[2]In summary that judgment dealt with a challenge to an arbitral determination. I conducted a triage review and determined the challenge had no real prospect of success. As the gateway to a substantive hearing was not crossed I proceeded to dismiss the challenge and make a final order in line with the determination. The applicant now seeks his costs in the sum of £17,899.28. The respondent contends I should not make any order for costs. I have received submissions from both parties together with competing ‘authority’ bundles. Applicant’s Submissions

[3]The applicant draws my attention to a line of authorities which indicate the potential for a Court to make a costs order following rejection of a challenge at a triage stage: Haley v Haley

[2020] EWCA Civ 1369

(per King LJ); A v A

[2021] EWHC 1889

(per Mostyn J).The applicant draws the distinction between the arbitration challenge and the approach taken at the conclusion of a first instance decision under the Children Act 1989. In doing so the applicant is drawing attention to the close relationship between the arbitral challenge process and the appeal process under Part 30 Family Procedure Rules 2010.

[4]Turning to the specific basis as to why an award should be made the applicant makes the following points:• This arbitration was itself a detailed and extensive process to which the parties voluntarily subscribed and in doing so selected their tribunal of choice. The arbitration heard live evidence, extensive examination, expert evidence and determined issues both of fact-finding and welfare, following which the arbitrator provided an extensive determination. This was equivalent to the process the parties would have had if in fact they had continued within the Court arena.

• The challenge was to both the fact-finding components and also the welfare assessment. It was not a procedural challenge and amounted to an attempt to relitigate issues which had already been determined.

• The challenge failed on each of the grounds advanced and each were found to have no prospect of success and as such the respondent’s challenge failed on all grounds.

• Pending the triage review the respondent unilaterally determined what contact would occur pending the review decision. As a result when the award was upheld the process of contact had to be re-timetabled to reflect the temporary adjustment imposed by the respondent. This is said to be relevant conduct and said to reflect the respondent’s attitude to contact prior to the determination.

• The point is made that: Family arbitration is intended to provide parties with a specialist, efficient and final means of resolving disputes concerning children whilst reducing the need for further litigation. Those objectives are advanced where parties have confidence that arbitral determinations will be respected save for where a proper basis for challenge is established.

• The applicant was successful. As a result of the challenge he has incurred further costs to those incurred in relation to the arbitration.

[5]The applicant contends the intended finality of an arbitration process is a powerful factor which should guide the Court’s exercise of discretion with respect to costs following a challenge which has failed at the triage stage. As such the policy underpinning family arbitration is a relevant factor when considering costs. Parties should not be entitled to a ‘free shot’ by analogy with a permission hearing under Part 30 in respect of which costs are typically not awarded as that would undermine the integrity of the process and lead to a rise in such challenges.

[6]The applicant points to the fact the respondent has brought this challenge with specialist advice and must be taken to be aware of the legal principles governing such reviews and the potential costs consequences that might flow were her challenge be deemed to lack merit. Respondent’s submissions

[7]The respondent accepts the relevant case law suggests a costs award may be the norm following a determination of this sort. However, the respondent points out the Court retains a residual discretion to order otherwise and drawing on recent authority argues the ‘threshold’ for exercising the discretion is not crossed.

[8]I am asked to consider Re T (Children) (Care Proceedings: Costs)

[2012] UKSC 36

; Re S (A Child) (Access to Justice Foundation Intervening)

[2015] UKSC 20

; Re E (Children: Costs)

[2025] EWCA Civ 183

, and Re M (A Child: Costs)

[2026] EWCA Civ 381

. Taken together these cases explain in clear terms why it is that courts do not generally make costs orders in children cases. At heart this reflects the principle that neither parent ‘wins’ the case. The Court is involved in a quasi-inquisitorial process with the sole goal being the welfare interests of the child. Each party is entitled to have a view on this and should not be punished by the court simply because the goal they advance has not been favoured by the Court. There will be many cases in which a court might be critical of a parent without ordering costs against them. This reflects the well understood presence of a threshold with regards to costs and the understanding that the court ‘retains a discretion to [order costs] in exceptional circumstances. These include cases in which a party has been guilty of reprehensible or unreasonable behaviour in relation to the proceedings.’ [Re E].

[9]The cited cases make clear a different costs system does not apply to appeal hearings with the general principles applying equally to appeals. However it is recognised that the circumstances on appeal may be different. In particular on appeal the parties have received the benefit of a judicial decision in contrast to uncertainty prior to that decision. An appellant is therefore taken to have a qualitatively different understanding available when they make their decision to issue the appeal. This distinction is recognised in Re S with the rider that ‘this does not alter the principles to be applied: it merely alters the application of those principles to the circumstances of the case.’

[10]It is argued the Court should approach the triage review costs by close analogy to the approach to costs in respect of a permission hearing under Part 30. Under Part 30 the approach is that costs of a permission hearing are not recoverable by a respondent if permission is not granted and they have chosen to make submissions (or attend) the hearing [see PD30A 4.24]. It is argued ‘a party who advances a triage challenge in good faith, on properly arguable grounds, and with the benefit of specialist legal advice, cannot be said to have behaved reprehensibly or unreasonably merely because the challenge fails at the triage stage.’ The respondent does however acknowledge that the triage process gives the applicant a much greater role in the process and this may impact on whether the court applies the costs approach found for permission hearings in Part 30.

[11]In SW v IB

[2023] EWFC 42

I dealt with this point concluding that the triage process could be distinguished from the permission process and that the restriction in relation to costs under the permission process did not apply to a triage review. But I acknowledge this does not address the more general principle as to the exercise of the cost discretion.

[12]Turning to the merits of the costs application it is contended the challenge was filed promptly and in good faith and was supported by a properly pleaded argument settled by experienced practitioners. It reflected the respondent’s genuine and serious welfare concerns as expressed through the fact-finding element of the arbitration. It is said the triage decision did not characterise the challenge as unreasonable nor did it make any findings of bad faith, reprehensible conduct, or abuse of process.

[13]It is also argued the backdrop to this process is one in which the law remains unsettled as regards the interaction between the law relating to costs under the Children Act 1989 and those applicable following triage and that this understanding should inform the Court in exercising its discretion and considering whether a challenge can be viewed as being unreasonable. I am also asked to consider the general principle of the potential for a costs order to contaminate the future co-parenting relationship with the potential of negatively impacting on the welfare of the child.

[14]It is argued the suspension of overnight contact is not evidence of unreasonable conduct and it is further argued the respondent’s financial position is not a factor which should inform the Court in considering whether to make a costs order and particularly so when reflecting on the parties’ respective financial positions. Conclusion on costs

[15]It is clear beyond doubt that I disapply the general principle that costs follow the event when considering this application. In its place I have a wide discretion with the only stated criterion being what I consider to be ‘just.’ However the incorporation of parts of CPR 44 by way of FPR 28.2 places a close focus on the ‘conduct of the parties’ when considering cost argument. Conduct can be action before as well as during the proceedings; can be with regards to the reasonableness of raising, pursuing, or contesting a particular allegation or issue, or; by reference to the manner in which a party has pursued or defended its case or a particular allegation of issue.

[16]It is also clear there are good and well understood grounds for not making costs orders in children proceedings (see my §8 above). Finally I accept the fact this is analogous to an appeal does not mean a different scheme applies although I accept the fact it is analogous to an appeal may be relevant in my assessment of whether a party has acted reasonably or not. In short conduct which was reasonable prior to a first instance decision may be judged unreasonable after there has been time to consider and take stock of the first instance decision.

[17]I accept the case law points to a need for some exceptional feature encapsulated in the words ‘reprehensible’ or ‘unreasonable conduct.’

[18]There is no argument for costs of the arbitration process and as such I proceed on the basis that there is not said to be any feature of conduct from that stage which influences this assessment. I note criticism is made of the respondent as to her approach to contact prior to the determination but I judge that a feature which the Court should accept as being part of her pre-determination analysis as to welfare. This means as far as costs is found to be payable it must be based on conduct post-dating the determination.

[19]The case law cautions against the risks of being wise after the event when assessing conduct. In Re M the Judge found the appeal was a powerful one and this factored into her assessment of conduct. The appeal court considered matters were not so clear cut when viewed from the perspective of the respondent in the case and when one had regard to all the circumstances of the case. The danger is of determining an appeal or triage and allowing the conclusions to overly influence the assessment of conduct as far as it relates to an assessment of the strength or alternatively weakness of the appeal or challenge. Decision on Costs in principle

[20]For the reasons I give below I consider this is a case in which ‘unreasonable conduct’ is established and that a costs order should be made against the respondent. There are three limbs to my conclusion which when taken lead me to conclude the conduct of the respondent is to be viewed as unreasonable as understood within the costs context.

[21]First, I do consider there is relevance in the format of the process under consideration. In this case the parties opted to step outside of the Court arena and to identify and appoint their own chosen arbitrator to resolve their dispute. They undoubtedly selected a highly experienced practitioner in whom they had confidence. In taking this approach they were plainly subscribing to a search for timely finality. This required financial commitment from the parties and I consider a fundamental starting position that they would respect the decision-making of the arbitrator, subject to real grounds for complaint. I do not know the funding arrangement for the arbitration but I proceed on the basis each of the parties agreed to fund their share on this fundamental understanding. Whilst I fully recognise this does not stand in the way of a challenge to the decision, and I accept such an arbitration could end with a flawed decision, it does amount to a clear understanding and agreement between the parties. In my assessment it was implicit that short of justified reasons the parties would accept the decision. In my judgment and in this specific context to withdraw from this understanding and pursue an unmerited quasi-appeal is unreasonable.

[22]Second, one must have regard to the quality of the determination. I do so in the context of the point made above. As I have noted previously the arbitrator conducted a full trial of the issues and received all the evidence she could have asked for. There is no room to suggest the process was summary or partial in nature leaving room for doubt as to the capacity of the arbitrator to provide the conclusions she came to. Further, the determination was a comprehensive document giving the clearest explanation for its reasoning. All appropriate points were considered and determined and the rationale and logic of the assessment were laid out clearly for all to see. In reaching my substantive conclusions I reflected on the conclusive nature of the decision. This was not a judgment that had an obvious hole in it or was such as to suggest the arbitrator had either misapplied the law or failed to balance the evidence. The respondent disagreed with the outcome but I dare say whatever decision had been reached one of the parties would have maintained some level of disagreement with it. That is in the nature of litigation where parties cannot themselves reach agreement and ask a Court to resolve the dispute for them. The point is it was this decision that the respondent chose to challenge not a theoretical decision. In doing so the respondent had all the information on which to take stock and a specialist team around her to inform her as to the prospects of success of the challenge but also the risks of doing so. In that regard the risk as to costs would be an expected consideration whatever is said about the absence of an appellate decision.

[23]Whilst I have made the point as to the risk of applying the benefit of hindsight it remains relevant to reflect on several points associated with this. First, this was substantially a challenge to the fact-finding element to a decision. The welfare points flowed from this and were modest in character. Whether a decision of a Court or an arbitrator it is very well understood that in the absence of an error of law or a sound basis for demonstrating the decision maker has failed to consider relevant factors or had regard to irrelevant matters that an appeal will struggle to succeed. This reflects the recognition of the benefits the first instance decision maker has when compared to the court reviewing the decision. Here the arbitrator heard evidence and cross examination and plainly formed her own views as to each party which were important in calibrating her conclusions. She and only she was placed to carry out this assessment. No secondary reassessment on the papers can match this opportunity. This principle is so well understood as to really not require elaboration yet it was in this context and informed by the decision that the respondent brought this challenge. Secondly, the respondent unlike the party in Re M is neither defending a first instance decision nor a respondent to a challenge. Without her challenge there would be no triage process at all. This is a material distinction. Unlike the party in Re M she is not entitled to argue a right to rely on a supportive first instance decision to justify her opposition to a challenge. In my assessment these features are highly relevant and I consider this is a case in which the respondent had the benefits of a clear decision, had the opportunity to take stock and obtain advice but nonetheless pursued a challenge notwithstanding the very real difficulties it would undoubtedly face. That the respondent believes in her case and brings the appeal genuinely may be correct but this will most often be the case. It does not mean that judged objectively the conduct was reasonable.

[24]Finally, I of course note the appeal failed on all grounds and did so at a triage stage. This is of course a clear indication of its inherent merit and speaks as to reasonableness in bringing the challenge. That I did not reference bad faith or unreasonableness is correct but that does not constrain my assessment of the same at the costs stage.

[25]I have not relied upon the unilateral decision with respect to contact nor the approach to contact pre-determination. I do not consider these to be relevant and material considerations. I remind myself that had this been a Court decision then the opportunity to seek a stay pending appeal would have arisen.

[26]My overarching assessment is that the respondent has taken the view that she has, as suggested, a ‘free shot’ in this case and can bring this challenge as a supplement to the arbitration process without risk. Such an attitude is plainly wrong and indeed unreasonable. Within the triage process this is likely to cause the applicant to incur significant costs in responding to the challenge and any party entering into such a process must be mindful of the impact of the same. In my assessment a party challenging an arbitration decision and particularly where the challenge is to the assessment of evidence, as in this case, must have a keen focus on the question of costs and the potential for the same to be awarded. Whilst this has not governed my determination there is plainly a strong public policy interest in parties to arbitration approaching the process with a commitment both to it and the decision that is reached. If parties consider an arbitration is merely the audition for the main night of the show then the benefits of out of court resolution processes will quickly fade away. Quantum

[27]I am carrying out a summary assessment and doing so on the standard basis. This means any doubts should be in favour of the payer. Proportionality is part of the assessment.

[28]I accept the costs of the applicant will have been increased by the need to respond to a highly detailed challenge. This will have undoubtedly increased the applicant’s costs. The respondent can have no complaint in this regard. I also accept that both parties have instructed specialist representatives and this has cost implications.

[29]I do not know what the equivalent costs bill for the respondent was although I am referred to the hourly rates charged by the relevant fee earners. That is not so helpful because of course the bill might have ended up being a bill in a similar amount due to a fee earner charging less taking more time to do the same work. In reality it is only half the picture.

[30]The bill is about £15,000 before VAT. Of this £1,692 relates to attendance with approximately £10,000 being on documents and £3,000 payable to counsel. Given there is a detailed challenge to 85% of the bill I do not see the respondent can ask for that and then seek a generalised further reduction of 30% + to reflect the summary nature of the assessment. To do so would be to double count on what is a relatively simple bill.

[31]I also do not consider the respondent can draw support from the costs ordered in a different case determined by this Court. That is impermissible and would amount to this Court effectively introducing a cap to costs.

[32]The respondent says the allowable sum should be no more than about £4,000 exclusive of VAT.

[33]I have borne in mind the ability to pay and the impact that such payment will have on the family and most particularly the child. The information I have received indicates the award I make whilst being impactful will not have a disproportionate impact.

[34]I focus on the ‘work done on documents’ aspect of the schedule and use the same numbering system for convenience. I do not agree with the hourly fee challenge and so do not adjust items 1 and 2. There is a difference in hourly fee charged by the respective representatives but the fee charged to the applicant is within a reasonable band and not disproportionate and I consider there has been appropriate use of different level fee earners.

[35]Turning to item 3 which is the work done on the skeleton argument. This is claimed at nearly 7.5 hours of work. I agree this appears high given the response skeleton argument is short. However, the costs undoubtedly are increased by the extensive nature of the opposing argument and the need to ensure the response meets the challenge. Nonetheless I consider this should be reduced and do so to a global sum of £2,500.

[36]Item 4 is time spent considering the triage decision. This is not, as argued impermissible as is considering the determination decision. This is a natural consequence of the challenge and is recoverable. I reduce this marginally to £950.

[37]Item 5 is the work on the costs schedule. This is claimed at just over £4,000 and amounts to more than 25% of the bill. Sadly this reflects the tendency for costs arguments to add to disproportionality. Of course this needed to be done but there was a need to have a close eye on proportionality and particularly so as the applicant expected to be a receiving party. Bearing all of this in mind I would reduce this item to £2,000.

[38]Item 6 is the costs of the bill itself. I reduce this to £500.

[39]Counsel is claimed at £3,000. I note counsels’ role was advisory with the drafting being done by the solicitor. I consider it was reasonable to instruct counsel. I agree with the respondent and reduce this to £1,750.

[40]The impact of this is to reduce the bill by £4,312 leading to a revised sum of £10,593. Stepping back and recognising this is a summary assessment but also recognising I have engaged with most of the items I apply a general reduction to £10,000.

[41]Allowing for VAT the bill is summarily assessed at £12,000 (inclusive of VAT). This is the sum payable on normal terms. His Honour Judge Willans