In ancillary relief proceedings, the husband had not made frank disclosure of his assets. The final Calderbank offer of andpound;600,000 was made only the day before the substantive hearing. The offer was rejected. The judge awarded the wife a lump sum of andpound;1 million. The judge made no order as to costs after the date when the wife’s solicitors had rejected an earlier, lower, offer by the husband. From that date both sides had acted reasonably. The wife appealed. No counter-offer had been made by the wife.
Held: The starting point, is that costs prima facie follow the event but in family cases this rule may be displaced more easily, and it is unusual to order costs in children cases. For financial relief the applicant has to make the application in order to obtain an order. Orders by consent; usually include the applicant’s costs. If contested and the applicant succeeds, where money available and no special factors, the applicant spouse is likely to obtain an order for costs. The behaviour of one party, such as in material non-disclosure of documents, may be a material factor. In some few cases the assets are substantial and an order for costs can (if appropriate) be made. The court rules reflect the need for Calderbank offers, subject to conditions, to have teeth. The respondent must make a serious offer worthy of consideration. If he does so, the applicant should accept or reject the offer and make clear any counter-offer. Both should negotiate. There is a very wide discretion in the court in awarding costs. Many reasons may affect costs including material non-disclosure, and delay or excessive zeal. The need to use all the available money to house the spouse and children of the family may be constraints. It would be inappropriate to constrain that wide of discretion. But the starting point in a case where there has been an offer is that, prima facie, if the applicant receives no more or less than the offer made, she/he is at risk not only of not being awarded costs, but also of paying the costs of the other party after communication of the offer and a reasonable time to consider it. ‘I cannot, for my part, see why there is any difference in principle between the position of a party who fails to obtain an order equal to the offer made and pays the costs, and a party who fails by the offer to meet the award made by the court. In the latter case prima facie costs should follow the event, as they would do in a payment into court, with the proviso that other factors in the Family Division may alter that prima facie position.’
Russell LJ: ‘In his opening submissions to this court, counsel for the husband invited us to lay down guidelines which would, he said, be of assistance to those charged with the responsibility of deciding what, after divorce, is the appropriate level of lump sum payments in cases where very substantial capital assets are available. I do not think that such an exercise is possible. The guidelines already exist. Section 23 of the Matrimonial Causes Act 1973 is the enabling provision for an order for the payment of a lump sum. Section 25, as amended by the Matrimonial and Family Proceedings Act 1984, in terms, requires the court to have regard to all the circumstances of the case and subsection (2), under no less than eight sub-paragraphs, sets out the matters to which the court in particular shall have regard.
In the individual case, some of those matters will assume greater importance than others and, indeed, the facts of this case well illustrate that proposition. In my judgment in this case we are concerned with a wholly exceptional set of circumstances . . . . ‘
Judges:
Butler-Sloss LJ, Russell LJ
Citations:
[1991] 2 FLR 233, [1992] Fam 40, Times 01-May-1991, [1992] 1 All ER 267
Jurisdiction:
England and Wales
Citing:
Cited – Calderbank v Calderbank CA 5-Jun-1975
Letter Without Prejudice Save as to Costs
Husband and wife disputed provision under 1973 Act, and a summons under section 17 of the 1882 Act. The wife had offered to transfer a house to H occupied by his mother, worth about pounds 12,000, in return for him leaving the matrimonial home. He . .
Cited – Singer (formerly Sharegin) v Sharegin 1984
In family proceedings, the starting point for the award of costs is that they prima facie follow the event but that presumption may be displaced much more easily than, and in circumstances which would not apply, in other divisions of the High Court. . .
Cited – McDonnell v McDonnell CA 1977
In family proceedings, a costs letter had been written in the form suggested in Calderbank.
Held: The court accepted and endorsed the practice suggested by Cairns LJ. Ormrod LJ said: ‘The important factor which distinguishes this case is the . .
Cited by:
Cited – Butcher v Wolfe and Another CA 30-Oct-1998
The parties had been partners in a family farm. On dissolution there was a dispute as to apportionment of costs. An offer had been ‘without prejudice save as to costs’.
Held: Costs may be denied to a plaintiff who had received a Calderbank . .
Cited – Norris v Norris, Haskins v Haskins CA 28-Jul-2003
The court considered how orders for costs were to be made in ‘big money’ cases.
Held: There were two sets of rules. Cases should be considered by first applying the Civil Procedure Rules. This would allow the court to consider the full range . .
Cited – Corner House Research, Regina (on the Application of) v Secretary of State for Trade and Industry CA 1-Mar-2005
The applicant sought to bring an action to challenge new rules on approval of export credit guarantees. The company was non-profit and founded to support investigation of bribery. It had applied for a protected costs order to support the . .
Cited – In re T (Children) SC 25-Jul-2012
The local authority had commenced care proceedings, alleging abuse. After lengthy proceedings, of seven men and two grandparents, all but one were exonerated. The grandparents had not been entitled to legal aid, and had had to mortgage their house . .
Cited – Re S (A Child) SC 25-Mar-2015
The Court was asked as to the proper approach to ordering the unsuccessful party to pay the costs of a successful appeal in cases about the care and upbringing of children. It arises in the specific context of a parent’s successful appeal to the . .
Lists of cited by and citing cases may be incomplete.
Family, Costs
Updated: 11 June 2022; Ref: scu.182186