Norris v Norris; Haskins v Haskins

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
Judgment Date2003
Date2003

Financial provision – Ancillary relief – Calderbank offers – Whether judges adopting proper approach – Family Proceedings Rules 1991, r 2.69.

The two cases raised similar issues of general importance, the correct approach of the court to the treatment of costs in family financial disputes. One feature relevant to both the cases was that they came within the bracket occasionally described as ‘big money cases’. The main issue raised was the proper approach of the court to the making of confidential offers and counter-offers by the parties which were then disclosed to the judge after he/she had made an award in an ancillary relief application, otherwise called ‘the Calderbank offers’.

Held – Whilst recognising the difficulties which arose from the awkwardness of the language of r 2.69B of the Family Proceedings Rules, the rule was not incomprehensible. It was not for judges to deem a rule or section incomprehensible or unworkable, but the duty of the court to do its best to make sense of it. Rule 2.69 provided the code on Calderbank offers to be followed until further changes were enacted. By considering the factors under r 2.69D, where the court considered it unjust to apply r 2.69B, it could make a different costs order to reflect the justice of the case. In some cases the proper approach might be to make no order as to costs. Reading the Family Procedure Rules together with CPR 44.3 the court has a general and wide discretion to depart from the starting point of ‘winner takes all’. In the instant cases, the judges had applied the relevant rules and there were no grounds upon which the court was entitled to interfere with their conclusions; GW v RW[2003] 2 FCR 289 considered.

Cases referred to in judgments

Butcher v Wolfe[1999] 2 FCR 165, [1999] 1 FLR 334, CA.

Cowan v Cowan[2001] EWCA Civ 679, [2001] 2 FCR 331, [2002] Fam 97, [2001] 3 WLR 684, [2001] 2 FLR 192.

Cutts v Head [1984] 1 All ER 597, [1984] Ch 290, [1984] 2 WLR 349, CA.

Gojkovic v Gojkovic (No 2) [1991] FCR 913, [1992] 1 All ER 267, [1992] Fam 40, [1991] 3 WLR 621, [1991] 2 FLR 233.

Gojkovic v Gojkovic [1990] FCR 119, [1990] 2 All ER 84, [1992] Fam 40, [1991] 3 WLR 621, [1990] 1 FLR 140, CA.

GW v RW[2003] EWHC 611 (Fam), [2003] 2 FCR 289.

Lambert v Lambert[2002] EWCA Civ 1685, [2002] 3 FCR 673, [2003] 2 WLR 631, [2003] 1 FLR 139.

McDonnell v McDonnell [1977] 1 All ER 766, [1977] 1 WLR 34, CA.

Singer v Sharegin [1984] FLR 114, CA.

White v White[2000] 3 FCR 555, [2001] 1 All ER 1, [2001] 1 AC 596, [2000] 3 WLR 1571, [2000] 2 FLR 981, HL.

Appeals

Norris v Norris

Mr Norris sought permission to appeal and a long extension of time from the order of Bennett J, dated 28 November 2002, whereby he ordered Mr Norris to pay 80 per cent of Mrs Norris’s costs. Haskins v Haskins

Mr Haskins sought permission to appeal from the decision of Mr Bruce Blair QC, sitting as deputy High Court judge, whereby he ordered him to pay 85 per cent of Mrs Haskins’s costs. The facts are set out in the judgment of Dame Elizabeth Butler-Sloss P.Norris v Norris

Nicholas Cusworth (instructed by Jacobs Allen Hammond) for the appellant.

Clare Renton (instructed by Kidd Rapinet) for the respondent.Haskins v Haskins

Andrew Valentine Le Grice QC and Simon Webster (instructed by Guillaumes) for the appellant.

Martin Pointer QC and Jonathan Swift (instructed by Williams Thompson) for the respondent.

Cur adv vult

28 July 2003. The following judgments were delivered.

DAME ELIZABETH BUTLER-SLOSS P.

[1] The two cases before this court raise similar issues of general importance, that is to say, the correct approach of the court to the treatment of costs in family financial disputes. One feature relevant to both the cases is that they come within the bracket sometimes described as big money cases. The main issue raised is the proper approach of the court to the making of confidential offers and counter-offers by the parties which are then disclosed to the judge after he/she has made an award in an ancillary relief application, otherwise called ‘the Calderbank offers’.

[2] On 11 April 2003 Mr Norris sought permission to appeal and a long extension of time from the order of Bennett J made on 28 November 2002. On that day Bennett J ordered Mr Norris to pay 80% of the costs of Mrs Norris. Thorpe LJ directed an oral hearing on notice with the appeal to

follow if permission and extension of time were granted. On 3 June 2003 on the application for permission to appeal by Mr Haskins, made within the required time, Thorpe LJ directed an oral hearing on notice with appeal to follow if permission was granted. In that case Mr Bruce Blair QC, sitting as a deputy High Court judge, ordered Mr Haskins to pay 85% of the costs of Mrs Haskins.

THE BACKGROUND TO COSTS ORDERS

[3] The Calderbank doctrine is by now well-known. The case from which it takes its name was decided by this court in 1975, and whilst the views in that case may have been obiter, they were soon adopted as the established procedure in matrimonial financial claims (see McDonnell v McDonnell [1977] 1 All ER 766, [1977] 1 WLR 34).

[4] In Cutts v Head [1984] 1 All ER 597, [1984] Ch 290, this court reviewed the Calderbank procedures, and decided that they should be applied more generally to civil litigation. Two years later the Calderbank principle was formally written into the Rules of the Supreme Court by the introduction of Ord 22, r 14 and Ord 62, r 9.

[5] Following the civil procedure reforms and the introduction of the Civil Procedure Rules, RSC Ord 62 and CCR Ord 38 were replaced in relation to family proceedings by CPR Pts 43, 44, 47 and 48 (with some exceptions): Family Proceedings (Miscellaneous Amendments) Rules 1999, SI 1999/1012.

[6] The relevant part of CPR Pt 44 reads as follows:

‘44.3 Court’s discretion and circumstances to be taken into account when exercising its discretion as to costs

(1) The court has discretion as to—

(a) whether costs are payable by one party to another;

(b) the amount of those costs; and

(c) when they are to be paid.

(2) If the court decides to make an order about costs—

(a) the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party; but

(b) the court may make a different order.

(3) The general rule does not apply to the following proceedings—

(a) proceedings in the Court of Appeal on an application or appeal made in connection with proceedings in the Family Division; or

(b) proceedings in the Court of Appeal from a judgment, direction, decision or order given or made in probate proceedings or family proceedings.

(4) In deciding what order (if any) to make about costs, the court must have regard to all the circumstances, including—

(a) the conduct of all the parties;

(b) whether a party has succeeded on part of his case, even if he has not been wholly successful; and

(c) any payment into court or admissible offer to settle made by a party which is drawn to the court’s attention (whether or not made in accordance with Pt 36).

(Pt 36 contains further provisions about how the court’s discretion is to be exercised where a payment into court or an offer to settle is made under that Part)

(5) The conduct of the parties includes—

(a) conduct before, as well as during, the proceedings and in particular the extent to which the parties followed any relevant pre-action protocol;

(b) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;

(c) the manner in which a party has pursued or defended his case or a particular allegation or issue; and

(d) whether a claimant who has succeeded in his claim, in whole or in part, exaggerated his claim.

(6) The orders which the court may make under this rule include an order that a party must pay—

(a) a proportion of another party’s costs;

(b) a stated amount in respect of another party’s costs;

(c) costs from or until a certain date only;

(d) costs incurred before proceedings have begun;

(e) costs relating to particular steps taken in the proceedings;

(f) costs relating only to a distinct part of the proceedings; and

(g) interest on costs from or until a certain date, including a date before judgment.

(7) Where the court would otherwise consider making an order under paragraph (6)(f), it must instead, if practicable, make an order under paragraph (6)(a) or (c).’

[7] The ‘general rule’ at sub-r (2)(a) is also disapplied in relation to family proceedings by the Family Proceedings (Miscellaneous Amendments) Rules 1999, SI 1999/1012, r 4(1)(b).

[8] In Butcher v Wolfe[1999] 2 FCR 165, this court reviewed the working of the Calderbank procedure. Although the decision was given before the introduction of the CPR, Mummery LJ in his judgment helpfully set out (at 170–171) nine propositions, which included under proposition (6): ‘The court has an overall broad judicial discretion on costs.’

[9] The issue in that case was the reasonableness or otherwise of the refusal to accept the offer and the question of a counter-offer did not arise. The principle of broad overall judicial discretion is underlined in CPR Pt 44.

FAMILY PROCEEDINGS—GOJKOVIC V GOJKOVIC

[10] We have been told by counsel in the two appeals that the approach to the award of costs in ancillary relief cases, where Calderbank offers have been made, has been dominated by the decision of this court in Gojkovic v Gojkovic (No 2) [1991] FCR 913, [1992] 1 All ER 267 and less attention, it

appears, has been paid to the Family Proceedings Rules as amended by SI 1999/3491 and the judicial exercise of discretion provided by rr 2.69B and 2.69D (see below).

[11] It is of some importance to know the facts of Gojkovic v Gojkovic [1990] FCR 119, [1990] 2 All ER 84 and the principles governing the orders for financial relief for wives in ‘big money cases’ in 1991. The husband in that case had not made full and frank disclosure of his assets which amounted to £4m not £1m to which he originally deposed. The final Calderbank offer of £600,000 was made on 17...

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