Lambert v Lambert

Under the Family Proceedings Rules, an outcome more advantageous than a settlement offer engages discretionary powers concerning interest and indemnity costs. It does not determine the order automatically. The court must consider all the circumstances, including the prescribed checklist. Costs below may be awarded on the standard basis where that fairly reflects the disparity between the parties’ bills. Appeal costs may properly be awarded on the indemnity basis where comparable concerns do not arise. Interest may be limited to the period after payment of the solicitors’ rendered bill, and a rate at the top end of modern rates may remain acceptable. A further appeal requires a fundamental question warranting consideration by the House of Lords.

Shan Elizabeth Rose Lambert appealed to the Court of Appeal from the Family Division before Mr Justice Connell. The merits appeal had resulted in an order in her favour, including success on a ground that her needs had been underprovided for. The court then considered costs below and on appeal, interest, and permission for a further appeal to the House of Lords. The appellant relied on rule 2.69C of the Family Proceedings Rules, arguing that the order was more advantageous than the parties’ offers to settle. The central issue was how the discretionary costs and interest provisions should be applied in light of all the circumstances.

1. The court granted the costs application in part. Rule 2.69C engaged discretionary powers where the order was more advantageous than a relevant offer, but rule 2.69D required the court to exercise a wider discretion and take into account all the circumstances, including the checklist in sub-paragraphs (a) to (e).
2. Costs in the court below were awarded on the standard basis. That fairly reflected the basic discrepancy between the parties’ bills. Detailed assessment was left to the costs judge, who was to allow what was fair without presuming that the wife’s bill was reasonable. The court considered that approach fairer than specific disallowances for individual issues, consistently with the reasons given by Connell J.
3. Costs of the appeal were awarded on the indemnity basis. The court rejected the submission that the husband was being required to pay for a change in the court’s approach. He had been on risk in relation both to the fundamental case and to the argument that the wife’s needs had been underprovided for.
4. Interest on costs was restricted to the period after payment of the solicitors’ rendered bill. The proposed rate, although at the top end of modern rates, was accepted as permissible.
5. Permission for a further appeal to the House of Lords was refused. The court regarded its decision as applying the fundamental principles established in White and identified no fundamental question requiring further consideration. Any petition was to be pursued expeditiously. A stay could extend only until determination of the petition or any further appeal, and the further sum would carry interest from the judgment date if the challenge to quantum failed.

• Court of Appeal (Civil Division): By [2002] EWCA Civ 1832, the court awarded costs below on the standard basis, appeal costs on the indemnity basis, restricted interest, and refused permission for a further appeal.
• High Court of Justice, Family Division: Before Mr Justice Connell. The Court of Appeal referred to the decision below and to the argument that the wife’s needs had been underprovided for. The citation of the decision below was not stated in the judgment.