Alvina Collardeau v Michael Fuchs & Anor

In family proceedings, the court has a broad discretion to make such costs order as is just. The ordinary rule that the unsuccessful party pays does not apply to financial remedy proceedings, but it does apply to committal proceedings conducted within them. Costs in committal proceedings will generally be assessed on the indemnity basis. The court must assess reasonableness, conduct, importance, complexity and proportionality, and may disallow excessive staffing, unauthorised expert evidence and duplicated work. Where a party cannot immediately pay a costs award because of the other party’s outstanding financial obligations, the court may make a proportionate order for set-off or defer the date when payment and interest become due.

The ruling concerned costs following the applicant’s unsuccessful application for permission to bring contempt proceedings against the first and second respondents. The judge had dismissed that application in an earlier judgment dated 8 February 2024. The court also determined reserved costs arising from the first respondent’s withdrawn application to debar the applicant’s solicitor from acting. The issues were the applicable costs bases, the effect of the parties’ conduct, the reasonableness and proportionality of the respondents’ costs, and whether payment should be adjusted to reflect the first respondent’s outstanding financial obligations to the applicant.

1. The court summarily assessed both applications to minimise further expense and provide certainty. That approach was consistent with CPR PD 44, paragraph 9.2(b).
2. Under Family Procedure Rules 2010 rule 28.1, the court may make any costs order it considers just. The general rule in Civil Procedure Rules 1998 rule 44.2(2)(a) does not apply to family proceedings because it is omitted by rule 28.2(1). It does apply to committal proceedings, which remain civil proceedings even when conducted within financial remedy proceedings.
3. Costs in committal proceedings will generally be ordered on the indemnity basis: JSC v Pugachev [2016] EWHC 258 (Ch). The applicant’s application was serious but weak, evidentially flawed, improperly motivated and disproportionate. Indemnity costs were therefore justified.
4. The withdrawn debarring application was assessed on the standard basis by reference to Civil Procedure Rules 1998 rule 44.4(3). Although discontinuance generally requires payment of wasted costs, the applicant’s insistence on an unnecessary recital was relevant conduct reducing the amount recoverable. Applying the approach in Crowther v Crowther & Ors [2020] EWHC 3555 (Fam), the first respondent was ordered to pay £15,132.
5. The respondents’ costs were manifestly excessive and unreasonable. The court disallowed duplicated solicitors, unnecessary junior counsel, unauthorised expert evidence and other excessive charges. It assessed £101,471.50 for the first respondent and £189,815.40 for the second respondent.
6. The net award of £291,286.90 was ordered. The first respondent’s liability was set off immediately against interest owed to the applicant. The sum due to the second respondent was payable from 30 April 2024, with interest accruing only thereafter.

Not an appeal. The judgment determined costs following the court’s earlier dismissal of the applicant’s application for permission to bring contempt proceedings.