Applications for permission to bring proceedings pursuant to Part III of the Matrimonial and Family Proceedings Act 1984 (‘Part III’) have been something of a hot topic lately, following the handing down of the Supreme Court’s decision in Potanina (Respondent) v Potanin (Applicant) [2024] UKSC 3. In that case, colleagues of mine were successful in persuading the Justices of the Supreme Court that the ‘knockout blow’ doctrine, emanating from Lord Collins’ judgment in Agbaje [2010] UKSC 13 and applied by courts throughout the land for the last 14 years, requiring a respondent to demonstrate a ‘compelling reason’ in order to set aside permission being granted for Part III proceedings to be brought (more often than not granted at a hearing that they were present at) was procedurally unfair.

With the knockout blow test essentially now confined to the scrapheap of English and Welsh family law, legal and academic commentary since Potanina has, perhaps unsurprisingly, focused on the fact that the decision of the Supreme Court is likely to give rise to many more applications to set aside leave. What then, of the costs consequences for the unsuccessful applicant who now finds themselves either (i) being listed on notice on an inter-partes basis so the court can determine the question of leave having had the benefit of hearing from both parties, or (ii) having obtained leave ex parte, finds themselves having to defend the court’s decision to grant permission without hearing from the respondent when that respondent inevitably applies to set aside the grant of leave?

The answer may well be found in the decisions of District Judge Troy sitting in the Family Court in Leeds, in a case that my colleague, Ben Parry-Smith, and I, recently had before him. In this case, the learned judge had to determine the following issues:

1. Was there a ‘substantial ground’ within the meaning of s 13 of Part III for the prospective applicant wife to bring proceedings in England and Wales following an overseas divorce and financial award being made in Malaysia; and
2. What costs regime applies to proceedings brought pursuant to s 13?

The published judgments can be found at AS v RS [2023] EWFC 283 (B), AS v RS [2024] EWFC 284 (B) and AS v RS [2024] EWFC 32 (B), and this article will summarise the judge’s decision and reasons for it. But first, a bit of background.

Background

The wife (‘W’) and husband (‘H’) married on 2 January 2013 in Australia. W was British; H Australian. The parties lived in Malaysia and had three young children, the youngest of whom were twins aged five. W sought to bring proceedings for judicial separation and financial relief in Malaysia in 2019 and as part of those proceedings, the High Court of Malaya in Kuala Lumpur made an order prohibiting W from removing the children from that jurisdiction without leave of the court, the conclusion of the judicial separation proceedings or a further order of the court.

The parties then embarked upon a tsunami of litigation, involving various applications for permission to appeal interim orders and to vary various orders providing for the time the children spent with each parent. During the course of proceedings, W filed an application for permission to relocate to the UK with the children, H relocated to Saudi Arabia for work purposes and in response to W’s application for leave to remove sought joint custody and sole guardianship within the meaning of Malaysian law. Those competing applications came before a judge of the High Court in Malaysia for determination but before judgment could be handed down, W left Malaysia without H’s consent or the permission of the court, essentially, perpetrating an act of international child abduction leading to proceedings before the High Court in England for the summary return of the children to Malaysia. Orders for the return of the children were made by the Malaysian court. W did not comply. Ultimately, the English child abduction proceedings concluded with H agreeing in January 2023 that the children shall remain in England.

Malaysian divorce and financial remedy award

H then issued divorce proceedings in Malaysia and that application, along with W’s applications for judicial separation and financial remedies came before the Malaysian High Court on 7 February 2023 for trial. H attended that hearing with his Malaysian lawyers. W did not attend and nor did she instruct her lawyers, whom by that point in time had been representing her for nearly four years, to attend. The Malaysian court made an award in both the judicial separation and divorce proceedings, each one essentially mirroring the other.

It was accepted that whilst H had a high income, this was not a ‘big money’ when it came to the parties’ capital assets. Once a debt to W’s parents was discharged, the net pot for distribution amounted to just shy of £700,000. It was accepted that H’s income was just short of £27,000 per month, not paying income tax on that on the basis of him being resident in Saudi Arabia.

The Malaysian court made an award as follows:

1. W to receive capital of £345,000 to enable her to purchase a property mortgage free in her own name for her and the children following their relocation to Yorkshire.
2. H to pay periodical payments for the benefit of W at the rate of £2,500 per month until:
1. 2025, when the twins turned seven years old, with payments then reducing to £2,000 per month until;
2. 2029, when the twins turned 11 years old and started secondary school, when payments would reduce to £1,000 per month until;
3. 2031, when the twins turned 13 years old, when the payments would reduce to £500 per month until;
4. 2036, when the twins turned 18 and the payments would then be dismissed.
3. Child periodical payments at £1,000 per month per child.
4. Index linking of child and spousal periodical payments.
5. 3 x £15,000 bonus payments to W.
6. H to pay school fees, reasonable extras and health insurance for W and the children until the twins turned 18.

Round One: W’s Part III application – did she have a ‘substantial ground’?

A few months after the decision of the Malaysian court, which W had not sought to appeal, she issued an application in the Family Court at Leeds pursuant to s 13 for permission to bring Part III proceedings. DJ Troy, upon considering the application and W’s statement on paper, listed the hearing for an inter-partes hearing to determine the question of leave.

At the hearing, the judge heard and decided as follow:

1. W argued it was unsafe for her to return to Malaysia to ‘participate’ in the proceedings whilst she was in breach of court orders to return the children to that jurisdiction, which could lead to her imprisonment. In response, H argued:
   1. Orders made in the English child abduction proceedings already provided for the children to remain in England and that mirror orders to that effect would be sought from the Malaysian court;
   2. If the leave hearing came too quickly after the conclusion of the child abduction proceedings (c. four months) and W wanted the mirror orders in Malaysia in place before she travelled there to engage in the trial, she could have sought an adjournment. She failed to do so;
   3. W could have asked the Malaysian court for permission to appear remotely. She did not do so.

   DJ Troy entirely rejected W’s argument, finding that she ‘chose’ not to participate in the proceedings there and specifically prevented her Malaysian lawyers from dealing with any of the financial remedy issues.

2. W then argued that the Malaysian order was made without any participation by her in those proceedings. She further argued that it was made without any evidence or input from the her and the decision of the Malaysian court was made without any reference to her needs or to those of the children.
   

   DJ Troy dismissed W’s submissions with short shrift, referring to the four years of litigation that had been ongoing in Malaysia by that point in time, and noting that it was indeed W who first sought relief from the court by issuing the judicial separation and financial remedy proceedings and had fully taken part in her applications for interim orders. DJ Troy found that if the Malaysian court did not have evidence from W, and that it had no evidence as to her needs or those of the children as she averred, then this was ‘a failing on behalf of [W] if she had chosen not to submit such details in the course of the litigation’ and that ‘if such information was lacking it was entirely her fault’.

3. W alleged that H had not provided full and frank disclosure and there had been no scrutiny of his true financial position.
   

   H argued that the Malaysian court had an asset schedule reflecting his assets as set out above. It also had a copy of his employment contract setting out the nature of his income. H also argued that during the child abduction proceedings, he had invited W to provide disclosure and asked her to attend ADR in order that the ‘whole case can be swiftly settled’. He asked W to let him have any requests for disclosure that she felt was necessary. Furthermore, upon listing her application for leave on an inter-partes basis, the judge had also directed W to set out why she thought that H’s asset schedule was defective.
   In dismissing this element of W’s argument, DJ Troy found that not only had W failed to set out why she asserted H’s asset schedule was defective, but:

   ‘to the extent that [W] alleges that the Court has been misled by inadequate disclosure then, until this is been proven to the contrary that is a failure on her behalf insofar as she could and should have obtained pushed for such disclosure. She cannot properly continue to assert the same without good grounds.’

4. W was highly critical of the Malaysian court for making an order in the terms sought by H. DJ Troy held that criticism had little weight, and that the judge in Malaysia would only have made the order if she was satisfied if it was fair in all the circumstances of the case. Furthermore, given that H had actively participated and W had failed on every analysis to do the same, this was an area of criticism that could not be maintained.

Against the background as set out above, the diligent reader may not, perhaps, be surprised to learn that DJ Troy had no difficulty in concluding that W did not have the requisite substantial ground to persuade him that she should be granted leave to bring Part III proceedings. In revisiting the case law, DJ Troy reminded himself that it is not the law to grant permission simply because a more favourable order would have been made in this jurisdiction. In any event, the judge found that the provision ordered by the Malaysian court was not inadequate and it certainly fell within the discretion that an English court could have awarded. The judge considered that whilst the maintenance provisions of the Malaysian order might be a touch light, the capital provision was squarely adequate and, as such, the Malaysian court had not failed to make adequate provision.

Accordingly, W had failed to make out a substantial or solid basis for bringing her application, particularly when set against ‘her failure to engage in the conclusion of the Malaysian proceedings’. The judge went on to say:

‘I am satisfied this was a matter entirely of her own choosing and may well have been a tactical ploy. She should not, in my judgment, be allowed a second bite at the cherry by way of an appeal though the back door in circumstances where the Malaysian order can neither be said to be unfair nor failing to make adequate provision.’

The full judgment on permission can be found at AS v RS [2023] EWFC 283 (B).

Round Two: which costs regime applies?

It is perhaps unsurprising that, given H’s resounding success at resisting W’s application for permission to pursue Part III proceedings, he felt it appropriate to seek an order that W should be responsible for his costs of and incidental to his defence. Accordingly, when DJ Troy proceeded to formally hand down his first judgment refusing W’s application, H made his application for a costs order, which lead the learned judge to list a further hearing to determine the following question: which costs regime applies when dealing with an application for leave pursuant to Section 13 of Part III?

Costs never have been and nor will they ever be the most alluring of topic in any judgment and with no discourtesy at all intended to the judge, his judgment on the topic (and his second in these proceedings) does not deviate from that perceived wisdom. Be that as it may, and whilst there may be more salacious topics to be alighted upon in a trawl of the family law databases, DJ Troy undertakes a supremely helpful analysis of whether applications for leave pursuant to Part III:

1. Are excluded from the ‘no order’ rule pursuant to FPR 28.3 on the basis that, as contended by H, leave applications are specifically excluded from the definition of a ‘financial remedy’ in accordance with FPR 2.3(c). Accordingly, as H sought to persuade him, DJ Troy should start on the ‘clean sheet’ approach and refer himself to the principles on costs as set out in the CPR; or
2. In the alternative, and as argued by W, that applications for leave fall within the scope for those applications subject to the ‘no order’ regime and are subject to FPR 28.3(4)(b)(ii).

The conflicting argument

Counsel for H and W agreed that there was no decided case on the topic, an observation that the judge agreed with having undertaken his own research. Accordingly, the parties’ submissions were focused on academic commentary such as Rayden and Jackson, At A Glance, Jackson’s Matrimonial Finance, the Dictionary of Financial Remedies and, finally, Bennion, Bailey and Norbury on Statutory Interpretation. The Red Book, it transpired, offered very little guidance on the issue, something which was referred to by W’s counsel as a ‘conspicuous absence’.

It is clear on any reading of FPR 2.3(c) that a ‘financial remedy’ includes ‘an order under Part 3 of the 1984 Act except an application under section 13 of the 1984 Acts for permission to apply for a financial remedy’ (emphasis added). Similarly, FPR 28.3(4)(b)(ii) clearly includes within the definition of ‘financial remedy proceedings’, ‘an order under Part 3 of the 1984 Act’. As the judge put it, and having regard to the fact ‘there is no doubt that applications for leave under section 13 of the 1984 Act are included in Part 3 … On the face of it the two rules are mutually incompatible’ particularly when seen in the context of PD 28A, paragraph 4.1, which appears to suggest that when determining when a court can make a costs order in ‘financial remedy proceedings’ the definition adopted in FPR 28.3(4)(b)(ii) was to be preferred than the principle set in FPR 2.3.

Having gone through the texts referred to above, the judge found that all they sought to do was to repeat the rules as contained in the FPR. Rayden and Jackson did not provide any underlying analysis as to how the rules should be approached and At A Glance did little more than ‘recite the rule with no analysis’.

DJ Troy found perhaps the most help from the Dictionary of Financial Remedies. This article will not seek to rehearse the ways in which the Dictionary came to be more useful than other texts. For those that really want to grapple with the issue then I strongly urge you to read the judgment in full and the various texts yourself. For the purposes of this article, it is simply sufficient to say that the Dictionary undertakes an analysis of those types of cases that have been considered to be ‘for’ a financial order or ‘in connection with’ a financial order, with DJ Troy finding that, arguably, s 13 leave applications could be said to have ‘a foot in both camps’.

What did the judge decide, and how did he decide it?

To start with, the judge reminded himself of FPR 28.1, which states that ‘the court may at any time make such order as to costs as it thinks just’ and he reminded himself that the rest of the rules were there to aid him in determining how to apply the discretion that FPR 28.1 bestowed upon him. That discretion has to be applied, pursuant to FPR 1.2, when interpreting any rules contained within the FPR.

DJ Troy then undertook an analysis of those factors that supported each party’s case that the appropriate costs regime aligned with their desired outcome. Concluding that the arguments both ways were ‘finely balanced’, the judge returned to the fact that there is clearly a mistake within the FPR on the basis that FPR 2.3(c) and FPR 28.3(4)(b)(ii) are not mutually compatible, and this uncertainty could never have been intended by the Rules Committee when the rules were being drafted. With that in mind, the judge was clear that in order to arrive at a conclusion he had to apply a construction that rectified the error in the drafting and in doing so, he was bound by the decision in Inco Europe Ltd v First Choice Distribution. This decision meant that if the judge was to substitute his own analysis of the conflicting rules, then he had to be ‘abundantly sure’ of the following matters:

1. the intended purpose of the provision in question;
2. that the drafter and the legislature inadvertently failed to give effect to that purpose in that provision; and
3. the substance of the provision the legislature would have made (though not necessarily the precise words it would have used) had the error in the Bill been noticed.

In undertaking the exercise above, the judge decided:

1. that in determining what a ‘financial remedy’ was in accordance with FPR 2.3, the drafter had the range of orders available to them pursuant to Part III, but specifically excluded leave applications pursuant to Section 13. This, the judge found, was an informed and conscious decision and ‘was the underlying intended purposes of that provision’.
2. FPR 28.3(4)(b)(ii) was drafted far more broadly, in that it included all of Part III in the definition of ‘financial remedy proceedings’ and thus lacked the same amount of rigour and consciousness as FPR 2.3(c).
3. The above caused the judge to find that the intended purpose of the rules was to exclude s 13 leave applications being considered a ‘financial remedy’ or ‘financial remedy proceedings’ because of the conscious decision for it to be specifically excluded in FPR 2.3(c), which was not repeated in FPR 28.3(4)(b)(ii).

Accordingly, DJ Troy agreed with H, and held that applications for leave to bring Part III proceedings pursuant to Section 13 do not fall within the ‘no order’ costs regime.

Round three: should W be ordered to make a contribution towards H’s costs incurred successfully resisting her application for leave?

Having succeeded in his argument that applications for leave pursuant to s 13 of Part III fall outside of the ‘no order’ regime, H then sought to persuade DJ Troy that having regard to the circumstances of this case, it was right for W to pay a contribution towards his legal fees. This was on the basis that, as H had argued, the court should apply the general rule contained in CPR 44.2 as set out in Judge v Judge [2009] 1 FLR 1287 and Baker v Rowe [2010] 1 FLR 761, i.e. the ‘clean sheet’ approach.

With a ‘soft starting point’ of costs following the event, thus suggesting that H was entitled to his costs, W argued that this presumption is subject to the very wide discretion of the court that is ‘much more easily’ displaced in family law proceedings than others and, in any event, FPR 28.2(1) expressly disapplies CPR 44.2(2) (being the provision that provides for costs following the event). In response, H could not disagree with the drafting of FPR 28.2(1), but maintained that the court’s wide discretion, having regard to Solomon v Solomon [2013] EWCA Civ 1095 and Gojkoviv v Gojkovic (No 2) [1991] 2 FLR 233, meant that the judge could order that costs should still follow the event.

Having reminded himself that H had ‘unquestionably succeeded having secured the outright dismissal of the dismissal of [W’s] claims’ the judge then proceeded to consider CPR 44.2(4) in detail, which sets out, in mandatory terms, the matters the ‘the Court will have regard to’ when making a decision on costs.

Conduct

H argued that he was clearly vindicated in his case given that DJ Troy had dismissed W’s application for leave. He submitted that W’s conduct, in choosing to not engage in the Malaysian proceedings, her (misplaced, as DJ Troy found) criticisms of the Malaysian judge and W’s misguided approach regarding various other elements of the case leant in favour of an award of costs being made.

Has a party succeeded on part of its case, even if that party has not been wholly successful?

Before considering this in close detail, DJ Troy noted a tension between FPR 28.2 and CPR 44.2(2) and (4). FPR 28.2 disapplies the general rule that ‘loser pays winner’ when it comes to the whole of their case as contained in CPR 44.2(2). However, CPR 44.2(4) tells us, in mandatory terms, that the court will have regard to whether a party has been successful in part of their case, whether wholly or not. How can it be, questioned DJ Troy, that the Family Court should disregard if a party has been wholly successful, but it must take into account if that party has been partly successful?

In any event, and as the judge had remarked earlier, H had been wholly successful on the entirety of his case, whereas W failed on all fronts.

Any admissible offer to settle made by a party brought to the court’s attention and the basis of assessment.

Upon being served with W’s application for leave to bring a Part III application, H was directed to file a statement setting out his response to W’s application. He duly did so, with the judge noting that H’s statement ran to some 157 pages (including exhibits). Following service of that statement, H made a proposal to W on a ‘without prejudice save as to costs’ basis. The thrust of that proposal was that H would concede the grant of permission, but strictly on the basis of abbreviated disclosure, Questionnaires in compliance with FPR 9.14(5)(c) and paragraph 10(C) of the Statement on Efficient Conduct, marketing appraisals of the properties (i.e. not a Redbook valuation) and a one day trial (i.e. bypassing an FDR). W rejected that proposal as a whole, but agreed with some of H’s conditions in principle. It is perhaps by seeing the force of some of H’s conditions that ultimately saved W later on when it came to the basis of how costs should be assessed.

W sought to argue that H’s proposal should not be taken into consideration because the directions sought by H were not in W’s gift to agree; they squarely fell within the court’s case management powers and were not matter for the parties.

DJ Troy dismissed that proposition out of hand, noting that:

‘in view of what has gone before it is entirely likely that I or any other judge would have acceded to those conditions if both parties were in agreement and urging them upon the court – even the condition that the FDR should be dispensed with. [H’s] conditions were clearly designed to minimise the costs of proceeding with a full-blown application for Financial Remedy … [H] was rightly concerned about opening the floodgates of litigation that had previously been so acrimonious, and financially ruinous for this family.’

Having lost on that argument, W then suggested that in making the proposal that he did, H clearly saw merit in W’s application for leave and that it was not, therefore, unreasonable for her to run her case. The judge did not agree. He found that the ‘whole intention behind [H’s] conditional offer was to ensure there would be a swift and proportionate determination of the issues … This does not amount to a concession that there was any merit in [W’s] case’.

W then sought to argue that when the Calderbank regime operated in full force in financial remedy proceedings, a party receiving such a proposal only entered cost risk territory 14 days after that offer had been made. W criticised H for making his ‘without prejudice save as to costs’ offer less than 14 days before the inter-partes leave hearing. In dismissing this argument altogether, DJ Troy found that the force of an old Calderbank offer was that it dealt with the ‘whole’ of the claim, to include the various distributive powers the court has in applications for financial relief. He distinguished that from the situation he was dealing with, which was a binary question: did W have a substantial ground to bring an application for leave for Part III proceedings pursuant to s 13? Having answered that question with an emphatic ‘no’, which had been H’s case throughout, it would wrong to suggest that H could not recover his costs because he made a proposal to W that was on more favourable terms than the outcome the judge ultimately provided for her.

Accordingly, the judge was satisfied that H’s proposal was one that he should have regard to, but in arriving at that decision, it did not mean, in the judge’s view, that the basis of assessment should start with indemnity costs because H had beaten his own offer. W had sought to engage in negotiation around the conditions attached to H agreeing to leave on ‘without prejudice save as to costs’ terms. It is that engagement, and his analysis that this case did not ‘fall outside the norm’, that caused DJ Troy to make an award for costs on the standard basis.

Impact of any costs order

W submitted to the judge that before making any award for costs, he had to consider the impact that it had on her, because whilst it did not fall under the list of factors set out in CPR 44.2, it was, inevitably, part of the circumstances of the case as provided for CPR 44.2(4). The judge also noted that whilst his second judgment concluded that leave applications fall outside the scope of FPR 28.3, those rules do say that the court take into account the financial effect on the parties of any costs order. Having undertaken a further analysis of the frictions between the CPR and the FPR, the judge concluded that, when dealing with applications for costs governed by the clean sheet approach, the correct approach would be to:

1. Not be directly concerned about the impact on the paying party;
2. To ignore the impact upon the paying party when assessing the reasonable and proportionality of the receiving party’s costs; but
3. To consider, whether as part of all the circumstances of the case, it would be appropriate to direct a paying party to pay a proportion or to make a nil contribution.

Although the judge readily accepted that any contribution towards H’s costs would eat into the housing fund the Malaysian award provided for W and the children, the judge reminded himself of the swathe of recent judgments, such as VV v VV (No 2) [2023] 1 FLR and HD v WD [2023] 2 FLR (being another case colleagues of mine were successful in on costs arguments, this time, in the context of nuptial agreements) and the trend of judges to reflect their unhappiness with a litigant’s conduct by making an award in costs. Accordingly, W was ordered to make a contribution of c.25% towards the costs that H incurred.

A novel point?

In her written case, W had raised a new argument setting out why, in the circumstances of this case, it might it be inappropriate for the court to make an award of costs. Her entire argument was predicated upon the basis, upon which, the court, decided to list her application for leave on an inter-partes basis.

W argued that in the ‘vast majority of cases’, the grant of leave would be determined on paper, with the court fulfilling its filter mechanism in deciding which cases seeking leave for Part III permission had a substantial ground and those which did not. In other words, W argued that the court in this case did something unusual (but she accepted that this ultimately remained in the court’s power to do), in that it listed W’s application for leave on notice, rather than determining it on an ex-parte basis. She argued that that as she had no control over DJ Troy’s decision that once he had listed the hearing on notice, she was bound to see the case through.

The judge rightly identified that, at the point in time that he was making his decision, there was no leading authority on this point and the outcome of the proceedings in the Supreme Court in Potanina was unknown. However, he rejected entirely the suggestion that W was bound to see her application through once a hearing had been listed to determine the grant of leave. The judge remarked that, at any point in time following the decision to grant leave, she could have considered the strengths and weaknesses of her case and the costs that both parties would incur. She had all the information available to her to make a decision about whether or not to seek the granting of leave when she made it and she ‘made a fully informed decision and elected to continue’. As such, the judge did not agree that the point W raised was a novel point, and that contested applications for leave are not unique, simply because most of them (then, arguably?) were determined on paper.

The impact of Potanina

The judge includes in this third judgment a short footnote given that, by the time the draft judgment was circulated to counsel the decision in Potania had been handed down. Not only did the judge conclude that nothing what the Supreme Court said changed his decision, he noted that the Supreme Court appear to urge prospective applicants seeking leave for Part III proceedings to proceed proportionately ‘coupled perhaps with condign cost penalties for those who ignore those exhortations’.

The future of leave applications pursuant to Section 13 of Part III

As noted at the start of this article, the need for any respondent to demonstrate a ‘knockout blow’ to successfully set aside leave granted on an ex-parte basis has been consigned to the history books. If a respondent, arguably, has a lower threshold to meet when seeking to set leave aside then it is not beyond reasonable contemplation that we may now any combination of the following:

1. An increased use of inter-partes hearings to determine the granting of leave;
2. An increase in the amount of applications for the setting aside of leave, if granted on an ex-parte basis; and
3. A decrease in the amount of applicants seeking to invoke relief available to them pursuant to Part III, if they are concerned that either (1) or (2) above is going to lead to a costs order being made against them.

Regardless of whom you are acting for, be that an applicant or respondent, the decisions of DJ Troy on (i) the applicable costs regime and (ii) the approach to take when deciding to award costs or not should be borne fully in mind. Those carefully crafted and considered judgments identify a number of tools that any practitioner may want to add to their arsenal when dealing with Part III applications in the future. In circumstances where proportionality and costs are more than ever on the tip of any judge’s tongue, you might want to consider whether your client may benefit from any of the tactical decisions made by H in AS v RS in order to protect your client’s position including, but not limited to, the following:

1. If you are consulted to advise whilst financial remedy proceedings are ongoing abroad, should your client make a proposal in that foreign jurisdiction that is on terms similar to what an English court make to mitigate, insofar as possible, the scope of any leave application for Part III being brought here in due course?
2. Once an application for leave is brought, should you give consideration to making a proposal to concede leave on ‘without prejudice save as to costs’ terms?
3. If you have had disclosure and a trial, what possible ways can you consider directions to truncate Part III proceedings if permission is granted / conceded?

If nothing else, these three judgments are helpful in two concluding ways. Firstly, it reminds us that Part III remains open to people from all walks of life – Russian oligarchs as well as those people with more modest assets (albeit, W in these judgments found it was very much not open to her given she had no substantial ground). Secondly, they are the latest instalment in the judiciary’s increasing trend to make costs orders when faced with unreasonable litigation conduct, even in cases with more modest assets.