VV v VV
| Jurisdiction | England & Wales |
| Judge | Mr Justice Peel |
| Judgment Date | 17 May 2022 |
| Neutral Citation | [2022] EWFC 46 |
| Docket Number | Case No: TA20J00001 |
| Court | Family Court |
[2022] EWFC 46
Mr Justice Peel
Case No: TA20J00001
IN THE FAMILY COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Brent Molyneux QC and Petra Teacher (instructed by Sears Tooth Solicitors) for the Applicant
Justin Warshaw QC and Kyra Cornwall (instructed by Michelmores LLP) for the Respondent
Approved Judgment
H seeks a costs order against W in the sum of £450,000.
By my judgment I ordered H to pay W £750,000 of which £237,000 was to clear her net liabilities, mainly comprising unpaid legal costs. H had already paid £400,000 of W's costs. The net effect of my judgment, therefore, is that H will be responsible for all of W's costs in the sum of £619,000 unless any costs order is made to disturb that outcome. I made clear in my judgment that I intended to proceed on a needs based analysis for W, and consider costs subsequent to my judgment. I canvassed that approach with leading counsel for the parties during the hearing, and both agreed.
As is well known, the starting point for costs in financial remedy proceedings is that each party should bear their own costs. By FPR 2010 28.3(6) the court may depart from the starting point and make a costs order against one, or other, or both parties. Factors to be taken into account are listed at 28.3(7) and include:
“(b) any open offer to settle made by a party;
(c) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;
(d) the manner in which a party has pursued or responded to the application or a particular allegation or issue;
(e) any other aspect of a party's conduct in relation to proceedings which the court considers relevant; and
(f) the financial effect on the parties of any costs order.”
Rule 4.4 of Practice Direction 28A states that:
“The court will take a broad view of conduct for the purposes of this rule and will generally conclude that to refuse openly to negotiate reasonably and responsibly will amount to conduct in respect of which the court will consider making an order for costs. This includes in a ‘needs’ case where the applicant litigates unreasonably resulting in the costs incurred by each party becoming disproportionate to the award made by the court”.
In Rothschild v de Souza [2020] EWCA 1215 the Court of Appeal held it was not unfair for the party who is guilty of misconduct to receive ultimately a sum less than his/her needs would otherwise demand. Examples of first instance decisions where the judge made a costs order notwithstanding that such order would cause the payee to dip into (and thereby reduce) the needs based award include Sir Jonathan Cohen in Traherne v Limb [2022] EWFC 27 and Francis J in WG v HG [2018] EWFC 70.
Sensible attempts to settle the case, or unreasonable failure to make such attempts, will ordinarily be a powerful factor one way or the other when considering costs. As Mostyn J said 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”.
In this case, H's...
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HD v WB
...1 FLR 1108. Versteegh v Versteegh[2018] EWCA Civ 1050, [2019] Fam 518, [2018] 3 FCR 895, [2019] 2 WLR 399, [2018] 2 FLR 1417. VV v VV[2022] EWFC 46, [2022] 2 FCR 706, [2022] Costs LR 929, [2023] 1 FLR WC v HC[2022] EWFC 40, [2022] 3 FCR 219. WG v HG[2018] EWFC 84, [2019] 2 FCR 124, [2019] 4......