Grubb v Grubb

Where parties have compromised a dispute about costs, the Court of Appeal should not require further costs documents if they can provide no financial benefit to the applicant. A contractual agreement between the parties may leave the applicant unable to obtain any financial advantage from showing that the other party’s solicitors were overcharging. Any remaining right to challenge those solicitors’ costs belongs to the client who incurred them. In the absence of evidence that the client intends to seek an assessment, an order requiring further documents would be unprincipled.

Following financial remedy proceedings in the Principal Registry Family Division, Moylan J summarily assessed the costs payable by Mr Grubb to his former wife at a substantial figure. On an earlier occasion, the Court of Appeal required the parties to file costs information and detailed bills to enable more precise consideration of that assessment. The wife’s solicitors then conceded that their costs could instead be conventionally assessed by a costs judge. The parties subsequently compromised the costs dispute, agreeing that £320,000 inclusive of interest should replace the sum ordered below and that the compromise should include the costs of the appeal. Mr Grubb nevertheless sought an order requiring service and filing of the further costs documents.

1. The application was refused. The parties’ agreement resolved the dispute about the costs payable by Mr Grubb and included the costs of the appeal.
2. The further documents could confer no financial benefit on Mr Grubb. By contracting with his former wife to pay the agreed costs, he could not obtain any financial advantage from establishing that her solicitors had charged too much.
3. It might be open to Mrs Grubb, as the solicitors’ client, to seek an assessment of their costs. However, there was no indication that she intended to do so or had reason to believe that she had been overcharged. The applicant’s misgivings were therefore personal to him and did not justify the order sought.
4. In those circumstances, it would be unprincipled for the court to require the filing and service of the costs material identified in the earlier order. Lord Justice Gross and Mr Justice Ryder agreed with Lord Justice Thorpe.

The parties’ agreed figure of £320,000 inclusive of interest was to be substituted for the figure ordered by Moylan J. The compromise also disposed of the costs in the Court of Appeal.

• Principal Registry Family Division: Moylan J summarily assessed the costs payable by Mr Grubb at the conclusion of the financial remedy proceedings.
• Court of Appeal (Civil Division): On appeal, the court required further costs material to enable more precise consideration of the summary assessment. Following the parties’ compromise, the agreed sum of £320,000 inclusive of interest was substituted for the lower-court figure, and the application for further costs documents was refused: [2012] EWCA Civ 398.