Rothwell v Rothwell

A clear contractual compromise of pending appellate proceedings, including one reached through mediation, should be upheld and enforced unless vitiating circumstances are established. The court may make no order as to costs where the parties’ agreement, their circumstances, the timing of settlement and deficiencies in the costs material make a costs claim unfair or insufficiently established. The Court of Appeal also emphasised the importance of robustly upholding clear compromises reached through its ADR scheme.

The parties were engaged in contested ancillary relief proceedings. His Honour Judge Nathan gave judgment in the Epsom County Court on 22 February 2008, and the husband appealed. The Court of Appeal referred the parties to mediation, which produced an agreement on 10 September 2008 providing for settlement, a clean break order and dismissal of the appeal. The husband later confirmed that he accepted disposal of the appeal by consent. The remaining issues were whether the mediated agreement should be enforced and whether the wife should recover her post-mediation costs.

Disposition. The appeal was dismissed by consent on the terms of the mediated agreement. The wife’s application for costs was refused, and the order provided for no order as to costs.

1. The mediated agreement was sufficiently clear to dispose of the appellate proceedings. The parties had agreed the essential terms, although further information was required to perfect the mechanism for providing the wife with pension income.
2. The court refused the wife’s claim for approximately £6,225. Her schedule did not separate costs caused by the husband’s vacillation from costs that would have been incurred in any event. The claimed briefing figure could not reasonably be sustained on assessment. The husband had also notified the wife’s solicitors before the hearing that he accepted the compromise, making it unfair to charge him for extensive preparation after that notification.
3. Lord Justice Thorpe stated, by way of generalisation, that once parties have compromised litigation the court will uphold and enforce the compromise unless the contract is vitiated. Referring to Marsden v Marsden [1972] Fam 208, he held that the same principle should apply to a contractual compromise of pending Court of Appeal proceedings.
4. The court stressed the policy importance of robustly upholding clear compromises reached through its ADR scheme. Lord Justice Jackson agreed with Lord Justice Thorpe.

• Court of Appeal (Civil Division): On appeal from the Epsom County Court, the appeal was dismissed by consent on the terms of the mediated agreement: [2008] EWCA Civ 1600.
• Epsom County Court: His Honour Judge Nathan gave judgment in the ancillary relief proceedings on 22 February 2008.