Arshad v Anwar

Where an application said to be for withdrawal is in substance an application for costs, it must be treated as a costs application and served on notice. Part 18 of the Family Procedural Rules 2010 requires seven days’ notice; prior awareness is not equivalent to compliant notice.

Reasonable costs of advice and preparation for a precautionary or alternative Part 3 application under the Matrimonial and Family Proceedings Act 1984 may be recoverable where the application was made necessary by the opponent’s litigation stance, even if later withdrawn. Costs of issuing prematurely, and duplicated work covered by another costs order, require scrutiny on assessment.

The wife issued an English divorce petition and an application for ancillary relief. The husband asserted that a talaq had already ended the marriage, causing the divorce petition to be stayed. While the validity and recognition of the talaq were being challenged, the wife issued a precautionary summons under Part 3 of the Matrimonial and Family Proceedings Act 1984.

After the stay was lifted when the talaq was shown to have been pronounced in England, the wife sought to withdraw the Part 3 proceedings but also sought her costs. Wood J refused the husband’s adjournment request, permitted withdrawal and summarily assessed costs at £9,793.67 in his absence. The central issues were whether the costs application had been properly notified and which preparatory costs were reasonably recoverable.

Disposition

Lord Justice Hughes delivered the judgment of the court. Lord Justice Thorpe and Lord Justice Moses agreed. The appeal was allowed in part. The summary costs order was set aside and replaced by an order that the wife’s costs of the Part 3 proceedings be assessed if not agreed.

1. The hearing was not substantively an application to withdraw the proceedings. Withdrawal could have been effected without a hearing. Its real purpose was to obtain an order for costs, so it had to be made on notice. Part 18 of the Family Procedural Rules 2010 required seven days’ notice. The husband had not received that notice. His probable awareness that a costs application might follow did not satisfy the rule.
2. The court could have been asked to abridge the time for service, but that would have required an inquiry into what the husband had been told, when he had received it, and what realistic opportunity he had to address both liability for costs and their amount. On that ground alone, the order below could not stand.
3. In principle, reasonable advice and preparatory work for a precautionary or alternative Part 3 application were recoverable. The work had been forced upon the wife by the husband’s assertion that a valid talaq had ended the marriage and that no English divorce or ancillary-relief proceedings were available. It was not unreasonable to prepare before the stay hearing.
4. It was unreasonable to issue the Part 3 application once the wife knew that the stay issue would be heard in about three weeks. The issue fee and any work that should have waited were not recoverable automatically and required assessment.
5. The assessment also had to examine possible duplication with the costs already awarded for lifting the stay. Both sets of work necessarily involved consideration of the legal position in England, Pakistan and the wider transnational context. The court directed that assessment should, if possible, be undertaken by the same judge and should maintain a careful distinction between recoverable preparation and duplicated work.

• Court of Appeal (Civil Division): On 23 February 2012, the court allowed the appeal in part, set aside the summary costs order and substituted an order for assessment of the wife’s Part 3 costs if not agreed.
• Principal Registry of the Family Division: Wood J permitted withdrawal of the Part 3 application and summarily assessed the wife’s costs at £9,793.67, after refusing the husband’s request for an adjournment.