Leary v Leary

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
Judgment Date11 September 1986
Judgment citation (vLex)[1986] EWCA Civ J0911-2
Docket Number86/0792
Date11 September 1986

[1986] EWCA Civ J0911-2





Royal Courts of Justice


Lord Justice May

Lord Justice Purchas


Diane Susan Leary
Martin Paul Leary

MR A. G. McDOWALL, instructed by Messrs Birkbeck Montague, appeared for the Appellant (Respondent).

MR P. F. SINGER, instructed by Messrs Bernard Sheridan & Co., appeared for the Respondent (Petitioner).


I will ask Lord Justice Purchas to give the judgment of the court.


This is an appeal with leave of the learned judge from part of an order made by Mrs Justice Booth on 23rd March 1986. The appeal raises a short but important point relating to the powers of the court to award a fixed sum in costs under the provisions of Order 62 rule 9 of the Rules of the Supreme Court. It is convenient at the outset to recite the relevant portions of this Order:


"9(1) Subject to this Order, where by or under these rules or any order or direction of the Court costs are to be paid to any person, that person shall be entitled to his taxed costs.


"(2) Paragraph(1) shall not apply to costs which by or under any order or direction of the court:-…


"(b) are to be assessed or settled by a master; but rules 28, 28A, 31 and 32 shall apply in relation to the assessment or settlement by a master of costs which are to be assessed or settled as aforesaid as they apply in relation to the taxation of costs by a taxing officer.


"(4) The Court in awarding costs to any person may direct that, instead of taxed costs, that person shall be entitled to:-


"(b) to a gross sum so specified in lieu of taxed costs."


The part of the order against which the appeal is brought provided: "9. The Respondent do on or before the 3rd April 1986 pay to the Petitioner the sum of £31,000 assessed as the costs recoverable by her from the Respondent in respect of the proceedings in this suit, to include all costs reserved and all costs hitherto ordered to be paid by him to her and to take account of the costs hitherto ordered to be paid by her to him; and it is directed that interest at the judgment debt rate for the time being shall be payable on any outstanding balance of the said costs from the 24th April 1986 until payment is made." The respondent, Martin Paul Leary, to whom we shall refer as "the husband" notwithstanding the dissolution of the marriage, appeals against this provision made in favour of the petitioner, Diana Susan Leary, to whom we shall refer as "the wife".


The background to the appeal can be shortly stated. Paragraph 9 was one paragraph of an order dealing comprehensively with the disposition of the family assets and the future maintenance of the wife and two children of the family made after a protracted hearing of two applications for ancillary relief in the matrimonial suit made by the wife and dated 5th November 1984 and 16th October 1985. The judgment refers to an application for ancillary relief filed by the wife on 2nd June 1983 following upon the filing of her petition on 11th January 1983 and the husband's answer of 3rd February 1983 upon the cross-allegations of adultery alleged in which the suit was eventually compromised and a decree nisi pronounced on 30th July 1984. As Mr Singer, who appeared for the wife, mentioned during argument, the litigation upon the ancillary matters arising from the dissolution of this marriage had, by the hearing before the learned judge, been on foot for more than three years. That the investigation of the husband's assets took a long time and involved an adjournment of the hearing of the applications was due to the attitude taken by the husband. This is commented upon by the learned judge in her judgment in the following terms:


"There then comes the question of costs. I have considered whether I ought to deal with this as part and parcel of the wife's lump sum payment. I have come to the conclusion that I should not, and that I should deal with the question of costs separately. Because this case has been of such particular complexity and difficulty, it is right that the order for costs should reflect what I feel to be the true position. It has been an inquiry which has been quite out of proportion to the end result, but it has been necessitated entirely by the husband's approach and unfortunately by the approach of those with whom he has been associated, including, I have no doubt whatever, Mr. Bousfield. His failure to disclose his financial situation has persisted to the last, as I have found, so that I have still been quite unable to quantify in any terms what his assets and wealth amount to. In those circumstances no legal adviser acting on behalf of the wife could properly have advised the wife to settle her financial claim. It is a responsibility which in the circumstances had to be taken by the court itself. As a result of that the wife should in no way be in debt as a result of the husband's actions. Therefore I have come to the conclusion without hesitation that it is right for me to assess the costs on the basis that the wife should be indemnified against the costs incurred as a result of the husband's actions."


It is only necessary to add that we understand from counsel that the husband appeared in person upon the hearing of the application having dispensed with the services of his legal and financial advisers, who were in fact called on subpoena in support of the wife's case. On any footing it has correctly been described as a complex and difficult case.


During the course of the hearings which took place between 14th October 1985 and 26th March 1986 in pursuance of the practice direction relating to estimated costs of the suit ((1982) 2 All E.R. 800) the wife's solicitors had prepared an itemised schedule of costs which amounted in total to £33,513. We have been told that since the hearing a bill of costs has been delivered in equivalent terms and that accordingly the wife's solicitors are bound in practice to that figure. The schedule had been available in October 1985 and was brought up-to-date in March 1986 to include the completion of the final hearing. There is some dispute as to how and at what stage it came into the hands of the husband who, it is to be remembered, was appearing in person. Certainly it was in his possession during the adjourned hearing of the applications in March 1986 and may well have been available to him at an earlier date. That there was some discussion on one item, namely counsel's fees, Mr Singer recalls but, as one would expect, he frankly acknowledges that he has no detailed personal recollection of the extent to which reference was made to the schedule or as to any discussion upon it which may have taken place before the learned judge delivered her judgment.


The learned judge, without, it appears, giving any indication that it was her intention so to do during the hearing of the application or the submissions of counsel and the husband, elected to assess a figure for costs under the provision of the order which we have already cited and reached the figure of £31,000. Her reasons for doing this appear from the passage in the transcript of her reserved judgment at page 28:


"In order to prevent any further litigation between these parties, any question of taxation with regard to that, I propose to order the husband to pay a fixed sum as regards the wife's costs. Having regard to the element in the figure of £33,500 submitted by the wife's solicitors of the husband's own costs which the wife has to bear and the element of costs other than those relating to the financial matters which are...

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