C P R-H v A M R-H

In exercising its discretion on costs, the court must consider all the circumstances, including the terms and timing of offers, the information available, the parties’ conduct, their means, the extent of success, and whether issues were reasonably pursued. An offer may satisfy the relevant costs rules even where the judgment is only marginally more advantageous, if applying the usual consequences would be unjust in context. Excessive expenditure by one party may justify withholding recovery of costs that would otherwise burden the other party. Where jurisdiction to order child periodical payments rests solely on consent, the court cannot order more than the amount consented to or adjust the capital award to compensate for the difference.

The judgment concerned costs following an ancillary relief determination in which the wife was ordered to pay the husband a capital sum on a clean-break basis and both parties sought costs orders. The court considered the parties’ Calderbank offers, their respective success and conduct, a substantial disparity in costs, and the former costs regime under the Family Proceedings Rules 1991.

The court also corrected the amount of child periodical payments ordered in the earlier judgment, because the husband had consented only to a lower indexed sum and the court’s jurisdiction arose solely from that consent.

1. Costs discretion. The court held that the costs consequences of the relevant offer provisions were subject to the statutory discretion to consider all the circumstances and to avoid an unjust result. The husband’s offer was sufficiently advantageous in context to engage the rule, but it would be unjust to require the wife to bear all costs incurred thereafter.
2. The court considered the offer’s timing, the information then available, the parties’ conduct, their mixed success, and the marked disparity between their expenditure. The husband’s costs were found to have been unreasonable and excessive, particularly during the final preparation period. The court therefore fixed the wife’s liability at £150,000 rather than ordering recovery of all costs incurred after the offer.
3. The court made no separate order concerning costs of an earlier discrete application because there was insufficient information to assess them. The parties were left to agree the precise payment arrangements and any remaining costs issues, subject to a further hearing if required.
4. Child periodical payments. The court held that it had jurisdiction to order payments only because the parents had consented. The husband had consented to £6,000 per child per annum, index-linked, not £7,500. The earlier order was therefore corrected to £6,000 per child per annum. The capital award was not adjusted to reflect the higher figure that the court might otherwise have ordered.

First-instance costs judgment following the ancillary relief judgment reported at [2007] EWHC 396 (Fam).