Gamboa-Garzon v Langer

Appellate intervention in a costs discretion is justified where the decision rests on an irrelevant consideration, overlooks a relevant consideration, or is plainly wrong. Where one party’s culpable default causes an adjournment, the resulting wasted costs should ordinarily be borne by that party. The other party’s failure to consent to an adjournment, or an unsuccessful application arising from the need to adjourn, does not justify withholding those costs where it did not cause additional expense. A solicitor’s material misrepresentation which secures an adjournment without consulting another party is a particularly compelling consideration in favour of a costs order.

The appellant, a third party claimant in related family and civil proceedings, appealed against an order of Mr Stephen Bellamy QC, sitting as a deputy High Court Judge of the Family Division, that there be no order as to costs between her and the respondent. The proceedings had been listed together for a five-day final hearing.

The respondent’s repeated failures to comply with directions, including directions concerning an accountant’s report, led to the substantive hearing being adjourned. Her solicitors sought to alter the listing without referring to the appellant or obtaining her agreement. At the adjourned hearing the appellant sought transfer of her civil claim and disclosure directions. The central issue was whether those matters, and the appellant’s conduct in not consenting to the adjournment, were relevant to the costs thrown away by the respondent’s default.

1. Appeal allowed. The order that there be no order as to costs between the parties was set aside. The respondent was ordered to pay the appellant’s costs of the hearing and any other costs thrown away by the adjournment.
2. The court may interfere with a discretionary costs decision where it was reached by reference to an irrelevant consideration, by failing to consider a relevant consideration, or where it is otherwise plainly wrong.
3. The judge’s suggestion that the appellant might have known from her cohabitation with the husband that an adjournment was likely could not properly count against her. The known facts provided no proper basis for criticising her for continuing preparation or for refusing to volunteer consent to an adjournment contrary to her interests.
4. The respondent’s failures to comply with directions had precipitated the adjournment. The appellant had acted reasonably in accepting its inevitability only after the listing had effectively been altered and in seeking transfer to reduce the resulting delay.
5. The appellant’s unsuccessful application for transfer and her opposition to late disclosure directions did not increase the wasted costs. Both issues arose from the need for an adjournment caused by the respondent’s inactivity. They therefore had no causal connection with the costs for which the appellant sought recovery and were irrelevant to the exercise of discretion.
6. The respondent’s solicitors had secured the alteration of the listing by representing that the relevant parties agreed, without consulting the appellant. That omission and misrepresentation supplied an additional compelling reason for ordering payment of the appellant’s wasted costs. Lord Justice Neuberger entirely agreed with Lord Justice Wilson’s reasoning.

• Court of Appeal (Civil Division): Appeal allowed. The lower court’s costs order was set aside and a costs order was made in favour of the appellant.
• Family Division, Principal Registry: Mr Stephen Bellamy QC, sitting as a deputy High Court Judge, made no order as to costs between the appellant and respondent after adjourning the substantive proceedings.