Family Law Hub

Costs

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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

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Latest training

  • In this recorded webinar, Petra Teacher from 29 Bedford Row discusses how the courts have dealt with add-backs and financial conduct arguments. Webcast, 14/06/2017, members only
  • Recording of webinar first broadcast on 8 February 2017 Webcast, 10/02/2017, members only
  • Course Objective: By the end of the session you should have an understanding of the regulatory issues relating to unbundled services and learnt how you can manage your client when offering such services. First broadcast on 3 February 2017. Running time 69 mins. Webcast, 07/02/2017, members only
  • Philip Cayford QC and Simon Calhaem of 29 Bedford Row, who represented Mrs Wyatt in the Supreme Court, are joined by members of the Mills & Reeve family law team to review and discuss the issues raised by the case and the impact of the Law Lords decision on practice. Webcast, 18/03/2015, members only
  • Webcast recorded on 22 January at 1pm. Lysney Cade-Davies and Petra Teacher of 29 Bedford Row review some of the leading cases of 2014 and highlight the lessons for the year ahead. Webcast, 22/01/2015, members only

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