11 October 2016
Application for costs on the indemnity basis, including an immediate and substantial payment on account, following a successful application to set aside a consent order
Facts
- H made a successful application to set aside a consent order in financial relief proceedings, due to W’s failure to disclose the existence of a substantial investment from an investor into a company incorporated prior to the marriage. This was found to be material non-disclosure, but was not fraudulent.
- Most of the current costs could have been avoided by a clear and transparent response from W at the outset.
- H sought an order on the indemnity basis with an immediate substantial payment on account. H contended that this basis was appropriate due to W’s unreasonable litigation conduct and her deliberately evasive approach.
- W argued that there was substantial mitigation for her position because of H’s litigation misconduct, where he disclosed confidential information to a journalist.
Held
- H primarily succeeded in his case in relation to the set aside application. This was the central issue before the court, and his success on this ground was a critical factor.
- When both parties’ litigation conduct was considered, W was entitled to a discount in respect of her liability of those costs: H approached the national press, W resisted findings of fraud, and had made a realistic and sensible offer to compromise proceedings in February 2014.
- H’s misconduct did not excuse W’s failure to disclose relevant information.
- Without a combined approach to assessment of costs from both parties, the correct approach was to direct what percentage of H’s costs should be met by W.
- Roberts J found that W was to pay 50% of H’s costs of the set aside application. This was to be paid on an indemnity basis, due to the fact that W’s answers were unhelpful at best and misleading at worst, taking the case out of the normal run of cases to which the standard basis of assessment would apply.
- The order made had to be fair and proportionate. The factors in CPR 1998 r44.2 should be considered.
- This order was to be stayed until the conclusion of the rehearing in November.