District Judge Troy. Costs in respect of an application for leave pursuant to s 13 Matrimonial and Family Proceedings Act 1984 are subject to ‘Clean Sheet’ rules.

FPR 28.3 provides specific rules for costs in financial remedy proceedings. FPR 28.1 provides a general unfettered discretion to make an order for costs as the court ‘thinks just’, informed only by the Overriding Objective.

FPR 2.3(1) provides a definition of a ‘financial remedy’ and expressly excludes an application pursuant to s 13 MFPA 1984 for permission to apply for a financial remedy.

However, FPR PD 28A, para 4.1 states, for the purposes of FPR 28(3) financial remedies proceedings are defined in accordance with FPR 28.3(4)(b) which is a more limited definition but includes ‘an application for an order under Part 3 of the Matrimonial and Family Proceedings Act 1984’, to which s 13 belongs.

Held

1. The court maintains a wide and unfettered discretion as to costs in accordance with FPR 28.1, to be applied subject only to consideration of the Overriding Objective.
2. There is a mistake in the rules which creates a conflict, and the drafters could never have intended to create such uncertainty. The drafters intended to expressly exclude applications pursuant to s 13 MFPA 1984 from the definition of a financial remedy in accordance with FPR 2.3(1). FPR 28.3(4) is drafted more widely which is an error and the drafters could not have intended to have included an application pursuant to s 13 having expressly created the exemption.
3. The legislature intends the court to apply a construction which rectifies any error where required to give effect to the legislative intention and the Inco Europe Ltd v First Choice Distribution [2000] 1 WLR 586 (HL) test should be applied. Applying the three-stage test to FPR 28.3(4), the court held that:
1. the intended purpose of the provision in question was to exclude leave applications;
2. the drafter inadvertently failed to give effect to that purpose (or at least caused the ambiguity) when drafting FPR 28.3(4)(b)(ii); and
3. the substance of the provision the legislature would have made is simply to have repeated the exception made for applications under s 13 MFPA 1984 when drafting FPR 28.3(4)(b)(ii).

Accordingly, costs for an application for leave pursuant to s 13 MFPA 1984 are subject to the clean sheet rule.