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- The former wife appealed against an order consequent upon a financial remedies hearing which had occupied several days in November and December 2020, following which the judge had circulated a draft reserved judgment which itself generated a request for clarification, further email submissions and ultimately a slightly revised approved judgment. The three live grounds of appeal were that the judge had been wrong to make no provision for the wife’s liabilities, had failed to step back and cross-check his award to ensure fairness, and had wrongly imposed a s 28(1A) bar. The latter ground of appeal was dismissed: the actual order made was within the available discretionary outcomes, and justifiable on the evidence. However, in the view of HHJ Mark Rogers, the practical impact of the judge’s exclusion of the costs liability had been to reduce the capital available to the wife for housing by about 37%, contrary to his own assessment of her housing need. The judge’s approach to the calculation of the correct needs-based lump sum had been wrong in law. As to the cross-check, failure to carry one out was not strictly capable of being a ground of appeal, as it was the ultimate decision that was under review, but, in the view of HHJ Mark Rogers, the judge’s failure to do so was clear and illustrated his failure to engage with the true discretionary process. The appeal was allowed and the lump sum order of £475,000 was set aside. The matter was not remitted; HHJ Mark Rogers assessed the appropriate lump sum award at £600,000. He directed that the husband should pay the wife’s costs of the appeal, the quantum of which was determined in a summary assessment, at the joint request of the parties. Judgment, 31/08/2021, free
- The mother applied for a costs order following the dismissal of the father's applications for return orders under the Hague Convention 1980 or the inherent jurisdiction in respect of their two daughters, aged 11 and 12. Poole J concluded that, although the father's conduct could not, in general, be characterised as unreasonable or reprehensible, he had been guilty of unreasonable conduct in making a wholly unnecessary application for a location order, and doing so without notice. Still, the costs order should be reasonable and proportionate, and the direct costs to the mother of that application would have been a relatively small part of her total costs, which came to £27,316.10 inclusive of VAT. Poole J ordered the father to pay her costs in the summarily assessed sum of £4,000 plus VAT of £800, a total of £4,800. This was a reasonable sum having regard to all the circumstances including the financial circumstances of the parties and their conduct in relation to the dispute. Judgment, 10/08/2021, free
- Both parents were British citizens, the mother living in London, the father in Switzerland. The mother applied for an Hadkinson order, for the father's two conjoined appeals to be dismissed unless he paid outstanding costs orders and other amounts previously ordered by the court. The father frankly admitted the non-payment of the amounts ordered, had not sought a stay or variation, and had not undertaken to pay. He was clearly in contempt, and had sufficient income to make payment. In determining whether to make a Hadkinson order, Poole J bore in mind that it was a case management order of the last resort, and that it had to be proportionate to the problem identified. He ordered that the father should make a payment of £88,796.37 previously ordered to be paid, together with another sum of £8,767.80 previously ordered to be paid, the total payable by a given date to the mother's current solicitors, to be held on account pending the resolution of an appeal. In default of payment, the father's two appeals would be dismissed. Judgment, 09/08/2021, free
- This was a second appeal in a financial remedy case described by the court as an exercise in self-destruction, the costs having become so disproportionate relative to the assets. The judge at first instance had made an order providing the husband with funds sufficient to buy a modest property and to pay most of his costs. The wife had appealed on the basis that the husband should not have been awarded anything at all and should bear his own costs. The appeal had been allowed, and the direct payment referable to the husband's costs had been substituted with a charge for the same sum to be secured on the property he would in due course purchase. The husband now appealed against the imposition of the charge. In King LJ's judgment, in cases where an order substantially in excess of the sum required to meet a party's assessed needs was sought in order to settle their outstanding costs (or debts referrable to costs), the judge should: (i) consider whether in any event the case was one in which an order for costs under FPR 28(6) and (7) in particular by reference to FPR PD 28 para 4.4 should be made; and (ii) have firmly in mind what the order they proposed to make by way of additional lump sum to meet a party's costs would represent if expressed in terms of an order for costs. This would act as a cross check of the fairness of the proposed order. In her view the order originally made by the judge, which allowed the parties to achieve a clean break, could not be regarded as being outside his wide discretion such that it was appropriate for his order to be altered on appeal. Moylan and Newey LJJ agreed. The appeal against the imposition of a charge on the property the husband hoped to buy was allowed. Judgment, 31/07/2021, free
- The parties married in 2004, separated in 2015 and the decree absolute of divorce was granted in 2019. The three children lived with the mother and had only indirect contact with the father. DJ Graham Keating found that their housing needs were being met, albeit imperfectly, by living in the former matrimonial home (FMH). He considered whether the income disparities and needs justified spousal maintenance. Although the mother had not been transparent about her resources, and the parties' litigation history strongly suggested that a clean break and the avoidance of subsequent litigation was very desirable, the mother would be responsible for the care of the children, for housing, feeding, schooling and clothing them. The district judge decided to grant the mother a 48.9% share of the father's 1995 pension, made no order for spousal maintenance, and left the beneficial interest of two properties with the mother and one with the father. He ordered the sale of the FMH, but this would not take effect provided that the mother secured the father's release from the mortgage, and paid him all costs awards from these proceedings, plus interest. If that were done within two years, the FMH need not be sold and the father would transfer his legal and beneficial interest in it to her. The father sought his costs of the FDR, and relied on a schedule of costs totalling £8,468. The district judge ordered that the mother should pay £7,388. The father also claimed for costs for the remainder of the proceedings. The district judge, quoting Mostyn J in OG v AG [2020] EWFC 52 ("if, once the financial landscape is clear, you do not openly negotiate reasonably, then you will likely suffer a penalty in costs") found that each of the factors in FPR 28.3(7)(a), (b), (d) and (e) justified an award of costs in favour of the father, the mother's evidence having been "elusive and evasive" as to her income. The mother was ordered to pay £9,000 towards the father's costs since the FDR. Judgment, 04/07/2021, free
- The husband and wife had been engaged in highly acrimonious and litigious financial remedy proceedings since late 2019. This hearing concerned the husband's application for the wife to pay, on an indemnity basis, his costs of a preliminary issue regarding the beneficial ownership of five ships and whether the couple were indebted to the second to sixth respondents. The latter issue had been settled following a payment from those respondents to the wife. Lieven J stated that the wife's conduct had been "fairly extraordinary". She had alleged a conspiracy to defraud her of millions of pounds of matrimonial assets, and then decided not to pursue those allegations, having already put the husband to enormous expense and depriving him of the chance to clear his name. It was a basic principle, said Lieven J, that fraud should not be pleaded without sufficient evidence. Where a party pleaded fraud, and then withdrew that claim, the argument that they should pay the other party's costs was even stronger than in the withdrawal of other types of claim. The wife would pay the husband's costs of and occasioned by the preliminary issues on an indemnity basis. Judgment, 15/01/2021, free
- An executor, the younger brother of the deceased, had appealed against an order for him to exhibit on oath a true and perfect inventory of the estate and an account of its administration. The respondents to the appeal were the deceased's widow and three children from his first marriage. The appeal was dismissed, and in this judgment MacDonald J dealt with whether those costs should be assessed on the standard or the indemnity basis, and the quantum of the costs. He decided that the executor should pay the costs of the respondents on an indemnity basis in the sum of £27,818.92 plus VAT. After delaying for over a decade, the executor had put the respondents to further expense, delay and inconvenience by requiring them to meet an appeal of dubious merit. This was a clear case for the awarding of costs on an indemnity basis. Judgment, 16/12/2020, free
- A costs application by the father against the mother, following his largely successful applications for child arrangements orders, specific issue orders and prohibited steps orders. There had been five contested hearings. The father cited her conduct of proceedings as relevant under CPR rule 44.2(4)(a) and (5). The mother argued that the established criteria of unreasonable or reprehensible conduct were not satisfied in this case, that it would not be just to make a costs order against her, that such an order would be to the child's detriment, and that if the court were minded to order costs, certain costs should not be included, such as the costs of and incidental to the FHDRA. HHJ Corbett, sitting as a s 9 deputy judge of the High Court, found that the mother's conduct had been unreasonable, she had barely made an effort to engage in proceedings, and a costs order, excluding the costs of the FHDRA, was entirely just. She was ordered to pay a contribution of £15,000 to the father's costs. Judgment, 16/12/2020, free
- The former husband applied for a legal services payment order pursuant to section 22ZA of the Matrimonial Causes Act 1973. As matters currently stood, neither party owned assets of any significant value. The former wife had been engaged in offshore litigation, which so far had proved unsuccessful, reducing but not eliminating the likelihood of recovery from that source. Roberts J was satisfied that legal services funding was not an option open to the former husband, nor was he a candidate for a commercial litigation funding arrangement. Focused legal advice could serve to narrow the issues which were currently preventing a settlement. The question then was whether the former wife was in a position to satisfy a legal services provision order. After considering the criteria in section 22ZB(1)(a)–(g), Roberts J decided that she would be able to procure the funding to meet such an order, and would not thereby be exposed to undue hardship or prevented from obtaining her own legal advice. The former wife was ordered to pay the former husband £95,000. Judgment, 21/11/2020, free
- In the course of consolidated Children Act 1989 Schedule 1 enforcement proceedings and Children Act 1989 section 8 proceedings, the father appealed against an order for financial disclosure with a penal notice, and a costs allowance order in favour of the mother. He also sought to put in evidence of the mother's alleged non-disclosure and drug use. Williams J refused the father's applications to admit fresh evidence, to amend the grounds of appeal, and for disclosure of the means by which the mother's lawyers were funded through the Children Act proceedings. He had not demonstrated a realistic prospect of success in relation to any of them, nor was there any other compelling reason to grant permission to appeal. The mother sought an order for the father to pay her costs of and occasioned by the appeal and the associated applications. Williams J was satisfied that this was an appropriate case in which to make such an order. Judgment, 05/11/2020, free