Macdonald J.

Background

Judgment dealing solely with the issues of costs and whether the substantive judgment in the financial remedies proceedings handed down on 14 January 2025 should be anonymised.

Costs

W’s costs in this case were £963,521 and H’s costs were £422,628. W relied on H’s alleged poor litigation conduct (primarily lack of timely and full disclosure) in seeking a contribution to her costs. H submitted that W should pay his costs on an indemnity basis and sought an order that she pay 50% of the difference between W’s costs and H’s costs, with a set off for £13,923.41 to ‘make good’ the costs orders already made against H for his careless disclosure.

At [10] to [11] Macdonald J outlines the applicable law in relation to costs; specifically, FPR 28.3, FPR PD 28 para 4.4 and CPR 44(6). Both parties were unable to rely on FPR 28.3(7)(b) as their open offers did not fall into what would have been considered a fair outcome.

Macdonald J was critical of both parties with respect to how they approached the litigation and their own evidence. However, whilst W made allegations against H concerning his non-disclosure and litigation misconduct, W accepted she was not seeking to assert that there were hidden assets or that H had acted in a dishonest matter. By contrast, Macdonald J identified three significant matters concerning W listed below that increased the time spent at a final hearing and reduced the parties’ chances of reaching a negotiated settlement:

1. W claimed she was not aware of H’s status as a US citizen to bolster her assertion that H had disguised his US citizenship in order to gain an advantage and W should not be responsible for H’s US tax liabilities. Macdonald J found that W was aware that H held US nationality; [18].
2. W created a construct whereby the deferred consideration and the consultancy agreement with respect to the sale of ELSA were kept off the balance sheet. Macdonald J’s findings against W resulted in an additional £1.6 million being added to W’s side of the asset schedule; [19].
3. W ran a case in respect of conduct pursuant to s 25(1)(g) of the MCA 1973 which was entirely without merit; [20].

Macdonald J found H should recover from W 20% of his costs, amounting to the sum of £84,540, reflecting the additional time and expense consequent upon the three matters above. This was decided on a summary basis to avoid further costs being incurred on a detailed assessment.

The costs order would also need to be subject to an adjustment to reflect the fact that previous costs orders made against H were paid from pre-divided funds meaning W contributed 50%.

Anonymity

W sought anonymisation of the substantive judgment, namely the identity of the parties, the country in which the parties resided early in their marriage and all the matrimonial assets. H opposed the anonymisation.

Macdonald J highlighted paragraph 28 of the President’s Guidance dated 11 December 2023 dealing with the Transparency Pilot which states, ‘it is open to the court in any particular case to depart from this guidance to the extent considered appropriate, in accordance with the law and the particular circumstances of the case’.

At [34] to [42] of the judgment Macdonald J considered the approach set out by Mostyn J in Zanthopoulos v Rakshina [2022] EWFC 30 and Re PP (A Child: Anonymisation) [2023] EWHC 330 (Fam), and the Court of Appeal case Lykiardopulo v Lykiardopulo [2010] EWCA Civ 1315, [2011] 1 FLR 819. Macdonald J found the approach set out by Mostyn J in Zanthopoulos and Re PP persuasive and concluded that there is no blanket approach to the issue of anonymisation and each case will turn on the application of the principled approach identified in the case law to the particular facts of the case. This will include a balancing of the interests of the parties and public as protected by Articles 6, 8 and 10 of the ECHR to be considered in the particular circumstances of each case.

In this instance, there was no justification for anonymising the judgment. W failed to identify what rights would be interfered with if the judgment was published without anonymisation. As such, Macdonald J found that the principle of open justice and the Art 10 ECHR right to freedom of expression outweighed the W’s right to respect for private life and family life to the extent it was relied on.

Macdonald J emphasised that the below factors were not or would not be capable on their own of changing the courts’ position and overbearing the principle of open justice:

• it might be embarrassing for W to have the judgment published in a form that identified her, given the findings made against her;
• the fact proceedings were heard in private, that no members of the press attended the hearing, and that no Transparency Order had been made;
• W’s assertion that H was seeking publication in order to punish W; and
• any potential agreement of the parties in respect of anonymisation.