Mark v Mark

The ordinary rule that costs follow the event may be qualified where the parties have achieved different degrees of success on discrete issues or where one party has caused unnecessary or wasted costs. An appellate court should respect the first-instance judge’s discretionary assessment of what is fair. It should intervene only where the decision is plainly wrong or has no realistic foundation.

David Alechenu Bonaventure Mark appealed against a costs order made by Hughes J on 16 October 2002. The order followed the dismissal of his applications for a stay of divorce proceedings and for a ruling that the court lacked jurisdiction to entertain the suit.

The judge found that Victoria Preye Mark had succeeded on both principal issues, but qualified the ordinary costs order. He allowed the husband set-offs for the wife’s failure on the polygamy issue, a day of unnecessary hearing caused by belated applications, and costs incurred in preparing to answer evidence from a witness on whom she ultimately did not rely. The central issue was whether that discretionary assessment was plainly wrong.

1. Appeal against costs order refused. Hughes J was entitled to find that the wife had succeeded on the two principal issues and to apply the ordinary rule that costs follow the event, subject to appropriate qualifications.
2. The ordinary rule could properly be adjusted to reflect the wife’s failure on the polygamy issue, including payment of the husband’s costs on that issue, and to provide set-offs for unnecessary hearing time and costs caused by evidence that was not ultimately relied upon.
3. The judge below was better placed than the Court of Appeal to make the discretionary assessment of what was fair. The husband’s criticisms of the treatment of changes in the wife’s case on domicile, residence and the stay application disclosed no realistic foundation for concluding that the order was plainly wrong.
4. The Court of Appeal would not interfere with the discretionary costs determination. Permission to appeal to the House of Lords was refused.

• Court of Appeal (Civil Division): Appeal against the costs order made by Hughes J on 16 October 2002 refused. Permission to appeal to the House of Lords refused.