Norris & Anor v Haskins & Anor

Costs in ancillary relief proceedings remain governed by CPR 44.3 together with rules 2.69, 2.69B and 2.69D of the Family Proceedings Rules 1991. Calderbank offers and counter-offers are important factors, but they do not dictate the result. Rule 2.69B creates a starting point where an order is more advantageous than the other party’s offer. Rule 2.69D requires consideration of all the circumstances, including timing, information, conduct and the parties’ means. The court retains a broad discretion and may make no order as to costs where justice requires. Judges must apply the enacted rules and cannot replace awkward provisions with a new costs regime.

These were two appeals concerning costs in lengthy ancillary relief proceedings. In Haskins, a deputy High Court judge ordered Mr Haskins to pay 85 per cent of Mrs Haskins’s costs after awarding her a lump sum and shares. In Norris, Bennett J ordered Mr Norris to pay 80 per cent of Mrs Norris’s costs after making a lump-sum award.

Both cases involved Calderbank offers and counter-offers. The appeals raised the proper interaction between CPR 44.3 and the Calderbank provisions in the Family Proceedings Rules 1991, and whether the existing approach should be replaced by a general starting point that each party bears its own costs.

Disposition. The Haskins appeal was dismissed. Mr Norris’s applications for permission to appeal and for an extension of time were refused.

1. The President held that costs in ancillary relief proceedings are governed by CPR 44.3 together with rules 2.69, 2.69B and 2.69D of the Family Proceedings Rules 1991. CPR 44.3 provides the general framework. Where Calderbank offers are relied on, the court should apply the CPR exercise with the fuller provisions of rule 2.69 substituted for CPR 44.3(4)(c).
2. Rule 2.69B supplies a starting point where the order is more advantageous to a party than the other party’s offer. The offeror will ordinarily bear costs incurred after 28 days, unless that would be unjust. Rule 2.69D requires consideration of all the circumstances, including every offer and counter-offer, timing, available information, conduct concerning information and the parties’ means. Calderbank offers must have practical consequences, but they influence rather than govern the broad discretion. Costs incurred before the relevant offer remain within that discretion.
3. The court rejected the approach in GW v RW which treated rule 2.69B as incomprehensible and substituted a new code. Courts must make sense of enacted primary and secondary legislation. The President and Thorpe LJ nevertheless endorsed the general direction of future reform towards simpler costs rules and greater use of no-order outcomes in suitable cases.
4. In Haskins, the deputy judge had considered the offers, the liquidity difficulties, the parties’ conduct and the overall justice of the case. He had not erred in principle, and there was no basis for appellate interference with his discretionary order.
5. In Norris, the application for permission was made several months late. The delay was intentional and lacked a satisfactory explanation. The substantial financial and procedural consequences for both parties supported refusal of an extension under CPR 3.9 and CPR 52.6.

• Court of Appeal (Civil Division): Haskins appeal dismissed. Norris’s applications for permission to appeal and extension of time refused.
• High Court, Family Division: Bennett J ordered Mr Norris to pay 80 per cent of Mrs Norris’s costs. A deputy High Court judge ordered Mr Haskins to pay 85 per cent of Mrs Haskins’s costs.