Lemmens v Barbara Brouwers (Ex Lemmens)

In financial remedy proceedings, the starting point is that no order for costs will be made. A costs order may nevertheless be made where the conduct of a party makes it appropriate. The court must consider the prescribed conduct factors, the parties’ obligation to assist the court, the nature and complexity of the issues, and proportionality.

Late service of a costs schedule is relevant but does not automatically require an adjournment or detailed assessment. Summary assessment at the end of a final hearing is permissible where the judge is well placed to assess the costs and any substantial dispute can be dealt with summarily. A costs decision attracts a particularly wide appellate discretion.

The husband appealed in person from a £30,000 costs contribution ordered by Recorder Cusworth QC after determining his application to vary periodical payments. The wife had incurred costs of £127,000 and was represented at the final hearing.

The husband challenged the late service of the wife’s Form H costs schedule, the decision to assess costs summarily rather than by detailed assessment, and the proportionality and factual basis of the contribution. The central issues were procedural fairness and the exercise of the conduct-based costs discretion in financial remedy proceedings.

1. Appeal dismissed. The Recorder was entitled to order the husband to pay £30,000 as a contribution towards the wife’s costs.
2. Under Family Procedure Rules 2010 rule 28.3, the general rule in financial remedy proceedings is that there will be no order as to costs. Rule 28.3(6) permits an order where the conduct of a party in relation to the proceedings makes it appropriate. Practice Direction 28A paragraph 4.4 requires attention to the parties’ obligation to help the court further the overriding objective, the nature, importance and complexity of the issues, and the risk of disproportionate costs.
3. The Recorder assessed the husband’s contribution by reference to the proportionate and reasonable costs the wife might properly have incurred. His deliberately misleading Form E and failure to provide a fully intelligible explanation until the final hearing could properly be given significant weight. The Recorder also balanced that conduct against the disproportionate level of the wife’s costs. The assessment did not require an exact item-by-item calculation of additional costs.
4. The wife should have served her costs schedule in accordance with the rules, and the failure was a matter for the court to take into account. It caused no real prejudice. The issues were relatively simple, and the husband identified no substantial grounds for disputing the claimed costs which could not fairly be dealt with summarily.
5. Civil Procedure Rules 1998 Practice Direction 44 encourages summary assessment, subject to good reason otherwise. The overriding objective favours a process that saves expense. Following Q v Q [2002] 2 FLR 668, the court was well placed to assess costs at the conclusion of the final hearing, even where the hearing was longer than one day.
6. An appeal against a discretionary costs order succeeds only where the judge exceeded the generous, particularly wide ambit within which reasonable disagreement is possible, or otherwise reached a wrong decision. Applying Malialis v Malialis [2013] 2 FLR 1216, no such error or excess of discretion was established.

• Court of Appeal (Civil Division) — In [2018] EWCA Civ 2963, the husband’s appeal against the costs order was dismissed.
• Central Family Court — Recorder Cusworth QC ordered the husband to pay the wife £30,000 towards her costs following the determination of his variation application.