Jenny Alzena Helliwell v Simon Graham Entwistle

An indemnity costs order is justified where the parties’ conduct or other circumstances take the proceedings out of the norm. The relevant norm is ordinary and reasonable conduct of proceedings. Deliberate fraudulent non-disclosure of assets, coupled with reliance on an express warranty of full disclosure and an attempt to prevent legal advice being obtained, may be well outside that norm. Where such conduct is maintained despite a proposal for a needs assessment under the Matrimonial Causes Act 1973, indemnity costs may properly be ordered both at first instance and on appeal.

This was an application for costs following the appellant’s successful substantive appeal from the decision of Francis J, identified as [2024] EWHC 740 (Fam). The appeal had been allowed and the matter remitted to the High Court for assessment of the appellant’s needs.

The appellant sought indemnity costs for the appeal and proceedings below, repayment of £75,000, and immediate payment. The respondent accepted liability in principle but sought standard-basis assessment and postponement pending any further appeal and the remitted needs assessment. The central issue was whether the respondent’s deliberate non-disclosure and litigation conduct were sufficiently outside the norm to justify indemnity costs.

The appellant’s costs application was granted. Costs incurred both below and in the Court of Appeal were to be assessed on the indemnity basis if not agreed.

1. Under CPR 44.2, the court has a wide discretion as to costs and must have regard to all the circumstances, including the parties’ conduct, partial success and admissible settlement offers. CPR 44.2(5) identifies relevant aspects of conduct, including pre-action conduct, the reasonableness of pursuing issues, and the manner in which a case is pursued or defended. The power to order indemnity costs appears in CPR 44.3(1)(b).
2. Following Excelsior Commercial & Industrial Holdings Ltd [2002] EWCA Civ 879, indemnity costs are appropriate where conduct, other particular circumstances, or both take the case out of the norm in a way justifying that order. Esure Services Ltd v Quarcoo [2009] EWCA Civ 595 clarifies that the norm means ordinary and reasonable conduct of proceedings, rather than conduct which merely occurs frequently.
3. The respondent had deliberately failed to disclose the majority of her assets despite expressly warranting full disclosure. She used a copy-and-paste email to induce the appellant to accept that disclosure was full and frank and that he could not obtain legal advice about it. She rejected an offer to proceed instead to an assessment of the appellant’s needs by reference to section 25 of the Matrimonial Causes Act 1973, maintained that her non-disclosure was not dishonest, and advanced self-interested explanations.
4. That conduct was not reasonable in relation to reliance on the pre-nuptial agreement and was well out of the norm in Family Division proceedings. It justified indemnity costs both at first instance and on appeal.

• Court of Appeal (Civil Division): Following the substantive appeal being allowed and remitted for assessment of the appellant’s needs, the court determined costs in this judgment, [2025] EWCA Civ 1071, and ordered indemnity-basis assessment if not agreed.
• Court below: An order of Francis J dated 20 March 2025, identified as [2024] EWHC 740 (Fam), was the subject of the substantive appeal.