Arbuthnot J. Costs judgment following a ruling in favour of the H on his application for a stay of divorce and financial remedy proceedings in this jurisdiction in favour of proceedings in Monaco. Arbuthnot J considers whether the Guide to the Summary Assessment of Costs should be considered when discussing costs in family cases.

In her substantive judgment, Arbuthnot J had found that although the W planned to move to London, the H never intended to leave Monaco, there was never a family home in England and, while the H was a businessman with international financial interests, his base was Monaco. The proceedings in Monaco were initiated first and the W had engaged in them.

The H claimed costs of £331,448.50, contending that costs should follow the event and he should be awarded the total costs claimed. He relied on the findings made by the court, arguing that it was not a finely balanced decision. Further, if no order was made as to costs, the effect would be to penalise the H for bringing proper applications which had been determined in his favour. The H had already paid £141,350 of the W’s costs so that she could defend the applications, which he would not be able to recover.

The H’s counsel said that hourly rates for solicitors in family cases were not covered by the Civil Justice Council regulations and the Guide to the Summary Assessment of Costs had not been adopted by the President for family cases.

The W argued there should be no order for costs on the basis that it was wrong in principle on the facts, i.e. the W could not afford to pay while the H was a man of ‘extreme wealth’. In addition, not ordering the W to pay the costs would have a negligible effect on the H and might prevent the W being properly represented in the proceedings in Monaco. The W relied on aspects of the H’s litigation conduct which was such that his application should be refused, i.e. he had delayed his application, failed to comply with directions, needlessly applied to adjourn the final hearing, failed to pay the amount ordered until the day before the final hearing. In addition, the H was pursuing a fault based divorce in Monaco which would have prejudiced the W, until this court encouraged him to take a more sensible approach.

The W pointed out that the hourly rates being claimed were £750 and £605 for the top charging fee earners, much higher than the £546 in the Guide to the Summary Assessment of Costs.

The judge agreed with both parties that FPR 28.2 should be applied and the ‘no order’ principle does not apply to an application for a stay of divorce or financial remedy proceedings. The court must therefore have regard to all of the circumstances, including the conduct of the parties and whether a party has succeeded on part of their case, the conduct of the parties including those matters set out at CPR 44.2(5).

Arbuthnot J observed that the H’s conduct at times fell beneath what the court expects of a party involved in litigation, including his failure to comply with directions, that he was slow at making payments and had applied to adjourn the final hearing. More significantly, the H was pursuing a divorce in Monaco on a fault basis which would have led to the W being at a disadvantage. The H only gave an undertaking to change this approach once it was raised by the court. However, despite this change, the W did not reconsider her case.

Although the H was a very wealthy man and there is a large disparity between the parties’ financial positions, the W’s arguments were weak and she chose to continue the proceedings and then lost the argument, so there should not be no order as to costs.

However, the H’s conduct had increased the costs, it should have been obvious that he should not have been pursuing the Monaco divorce on a fault basis, but the W had a weak argument, the FMH was never in London.

The judge accepted that a summary assessment could be undertaken, noting that there is no rule to the effect that a summary assessment takes place only in cases lasting up to one day.

The application of the Guide to the Summary Assessment of Costs to family cases was considered by DHCJ Colton KC in H v GH [2023] EWFC 235. The judge accepted that different considerations may apply in the Family Court than in the Civil Courts, but those are not as obvious in financial remedy proceedings. She considered that each part of the justice system should have a costs framework which is consistent, proportionate and predictable. The judge therefore considered that the guidance is helpful as it sets out what a reasonable and proportionate hourly rate is in the various types of cases, concluding that the top hourly rate of £546 seemed a proportionate amount.

Arbuthnot J does not give guidance, but does draw support from the Guide and determines that the W should pay 85% of the costs because of the conduct of the H which increased costs. The resulting figure to be further reduced by 30% on a standard assessment, leaving an amount of £196,000 to be paid by the W.