"CONDUCT UNRAVELS ALL": INDEMNITY COSTS AND COSTS ON ACCOUNT: A FAMILY CASE
In the judgment today in Joy -v- Joy-Morancho (No 3)  EWHC 2507 (Fam) Mr Peter Singer awarded indemnity costs against the respondent husband. Many of the observations in relation to costs are of general relevance to civil litigators as well as family lawyers.
“Where one party hatches a wholly deceptive presentation, pursues it persistently to the conclusion, and is found to have done precisely all of that, then he or she should expect no quarter from the court when it comes to costs. Such conduct unravels all and can and should in an extreme case where the conclusions are clear have clear costs condemnation meted out as the court’s response.”
“Slippery manoeuvres just as much as slippery slopes can be expected to bring out the truth of Newton’s third law of motion: For every action, there is an equal and opposite reaction.”
This was a claim for financial remedies following divorce. The judge found that the husband had gone to great lengths to “protect” his assets. An order for periodical payments was made but the capital claims were adjourned (a strategy which assisted the wife). The
- hich I should order H to pay on account within a short period, on which judgment debt interest should run from the date of the costs award.
THE JUDGMENT ON COSTS
The appropriate costs regimes
(i) ancillary relief costs strictly so-called, in relation to applications for financial remedies comprising also the First Appointment and subsequent directions hearings, two FDRs before Mostyn J, the PTR and indeed the main final [sic] and subsequent hearings: here the “no order principle” for proceedings within FPR 28 such as these is the general rule;
(ii) interim injunctions, including applications for freezing orders and applications under MCA section 37 to avoid dispositions, which are subject to a modified version of CPR Part 44 (as well as other CPR provisions not currently germane), where there is no presumption either that there be no order or that costs should follow the event so that the court’s starting point is “a clean sheet”;
(a) maintenance pending suit and the application for A v A costs allowances (at the time of the orders in this case, forming part of the maintenance pending suit evaluation) which are not subject to the “no order principle”; except that:
(b) that statement of principle is complicated by the fact that in relation to the first such hearing, on 1 May 2013, I ordered that the costs should be “in the financial remedy application”;
(iii) on 15 April 2015 I made no order, as between H and W, in relation to the costs of W’s unsuccessful application to set aside H’s charge of the Bentley to Beckmans as security for their costs.
It will I hope be immediately apparent how complex an analysis (and indeed a detailed assessment) would be required were I to attempt to apply scrupulously these different regimes to the several components of this multi-strand and thoroughly entwined litigation. Fortunately it seems to me that there is a way through this thicket. For a number of considerations obviously apply whatever the court’s point of departure is, and whether the judge is confronted with a clean sheet, or the presumption that there should be no order, or simply a discretion to be exercised judicially.
Moreover I ventured for consideration during the course of the hearing, and received no adverse response, the suggestion that it would be impracticable (and though I did not then articulate the thought, productive more of expense than clarity) to attempt an application-by-application or issue-by-issue analysis and assessment of the costs of this hydra-headed litigation. And so I have considered carefully all the propositions advanced to me during a full day of submissions on costs issues and propose, having weighed them, to stand back and address the global perspective with a broad brush.
The “no order principle” seeks to apply as the default outcome a situation where neither party should expect to recover costs from the other, in the hope no doubt that as a result they will be cautious about what each of them respectively ventures (or one might even say wagers) upon the uncertain event of the outcome of litigation in this sphere. Whether or not they incur that expenditure from their own separate sources the money ultimately comes from family resources, in the ordinary case, which may well fall for division. Thus, it is hoped, profligate expense will be less frequent. It has to be said that a number of cases in recent years indicate that this objective is often flagrantly not achieved, and this is indeed such a case. A peculiarity here however is that on the face of it a large proportion of the monies spent is said not to be available to either party: if one took his case at face value H’s solicitors might well conclude there was little prospect of him being able to pay them that £178,500 which on their figures he already owes them, without even taking into account the prospective costs of the appeal against these orders which he has expressed the wish to pursue.
(5) Subject to paragraph (6), the general rule in financial remedy proceeding is that the court will not make an order requiring one party to pay the costs of another party.
(6) The court may make an order requiring one party to pay the costs of another party at any stage of the proceedings where it considers it appropriate to do so because of the conduct of a party in relation to the proceedings (whether before or during them).
(7) In deciding what order (if any) to make under paragraph (6), the court must have regard to –
(a) any failure by a party to comply with these rules, any order of the court or any practice direction which the court considers relevant;
(b) any open offer to settle made by a party;
(c) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;
(d) the manner in which a party has pursued or responded to the application or a particular allegation or issue;
(e) any other aspect of a party’s conduct in relation to proceedings which the court considers relevant; and
(f) the financial effect on the parties of any costs order.
PD 28A para 4.4 adds to rule 28.3 that in considering the conduct of the parties for the purposes of rule 28.3(6) and (7) (including any open offers to settle), the court will have regard to the obligation of the parties to help the court to further the overriding objective (see rules 1.1 and 1.3) and will take into account the nature, importance and complexity of the issues in the case.
(4) In deciding what order (if any) to make about costs, the court will have regard to all the circumstances, including—
(a) the conduct of all the parties;
(b) whether a party has succeeded on part of its case, even if that party has not been wholly successful; and
(c) any admissible offer to settle made by a party which is drawn to the court’s attention, and which is not an offer to which costs consequences under Part 36 apply.
(5) The conduct of the parties includes—
(a) conduct before, as well as during, the proceedings and in particular the extent to which the parties followed the Practice Direction – Pre-Action Conduct or any relevant pre-action protocol;
(b) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;
(c) the manner in which a party has pursued or defended its case or a particular allegation or issue; and
(d) whether a claimant who has succeeded in the claim, in whole or in part, exaggerated its claim.
It is not easy to reconcile, in relation to two cases to which equally the “clean sheet” regime applied, comments of Ward LJ in Baker v Rowe  EWCA Civ 1162,  1 FLR 761 at , on the one hand, with observations of Mostyn J which were approved by Ryder LJ in the Court of Appeal case of Solomon v Solomon  EWCA Civ 1095 at . In parallel situations, so far as the costs regime is concerned, Ward LJ observed:
“… costs do not follow the event. The judge making the costs order has, therefore, a wide discretion. He could not properly ignore the fact that one side had won and the other had lost but that is not determinative nor even his starting point. It is simply a fact to weigh but in the circumstances of this case it is a fact of overwhelming weight.”
whereas in the view of Ryder LJ:
“The judge correctly stated the general rule did not relate to the interim applications he had decided. Costs were then in the discretion of the court, and the principles set out in CPR Part 44 applied. The starting point for what are described as ‘clean sheet’ cases is that costs follow the event. To find that principle one need look no further than Gojkovic v Gojkovich (No 2)  2 FLR 233 (CA) where Butler-Sloss LJ (as she then was) said:
‘there still remains the necessity for some starting-point. That starting-point, in my judgment, is that costs prime facie follow the event … but may be displaced much more easily than, and in circumstances which would not apply, in other Divisions of the High Court.’ “
But that is perhaps by the by: not least because I did not spot when referred to Solomon by Mr Pointer that Ryder LJ’s judgment was given on the occasion of an unsuccessful application for permission to appeal, and thus falls into one of the categories referred to in paragraph 6.2 of the Practice Direction (Citation of Authorities)  1 WLR 1001 which “may not in future be cited before any court unless it clearly indicates that it purports to establish a new principle or to extend the present law. In respect of judgments delivered after the date of this Direction, that indication must take the form of an express statement to that effect.” But, that notwithstanding, the juxtaposition of the two statements is perhaps an indication of how difficult it is clearly to formulate the differentiated guiding principles through whose hoops judges and practitioners must strive to jump.
I would though emphasise that the scope of the consideration to be given to questions of conduct is not confined to, but is expressed to include, the factors set out in rule 44.2(5), and thus would surely not exclude “any other aspect of a party’s conduct in relation to proceedings which the court considers relevant” for the purposes of FPR rule 28.3(7)(e) in a “no order principle” situation.
Further, in relation to that Practice Direction, I will digress to draw attention to the provisions of its paragraph 8, in my experience universally disregarded, and so no particular criticism is intended of the advocates in this case who did no more than follow that universal disregard. Solomonwas an additional transcript produced during the hearing to augment the 16 in relation to costs already in the agreed bundle. That paragraph reads:
8.1 Advocates will in future be required to state, in respect of each authority that they wish to cite, the proposition of law that the authority demonstrates, and the parts of the judgment that support that proposition. If it is sought to cite more than one authority in support of a given proposition, advocates must state the reason for taking that course.
8.2 The demonstration referred to in paragraph 8.1 will be required to be contained in any skeleton argument and in any appellant’s or respondent’s notice in respect of each authority referred to in that skeleton or notice.
8.3 Any bundle or list of authorities prepared for the use of any court must in future bear a certification by the advocate responsible for arguing the case that the requirements of this paragraph have been complied with in respect of each authority included.
8.4 The statements referred to in paragraph 8.1 should not materially add to the length of submissions or of skeleton arguments, but should be sufficient to demonstrate, in the context of the advocate’s argument, the relevance of the authority or authorities to that argument and that the citation is necessary for a proper presentation of that argument.
The requirements of that Practice Direction have of course since been buttressed by the additional requirement in paragraph 14 of the Revised Efficiency Statement issued on 1 July 2015 (after this hearing) that any bundle of authorities which has been agreed between the advocates should not contain more than “an absolute maximum of 10 authorities”, in addition to which (I quote it simply for completeness) paragraph 15 requires that “where it is necessary to refer to an authority, a skeleton argument must first state the proposition of law the authority demonstrates; and then identify the parts of the authority that support the proposition, but without extensive quotation from it.”
At  of this judgment I harked back to the jaundiced view W at an earlier stage took of this saga as a “stage-managed and crafted but fictional drama which has the underlying and collusive sub-text that H will when the dust settles return to a position where he has access, direct or indirect, to trust assets and to their value to meet his income and capital needs. She points to the hint in the 3 December meeting notes which suggest that when the time is ripe H may be taken on as an employee of the Trust or one of its businesses and paid a salary.” At  of this judgment I set out what I perceived as that primary issue of fact – whether H’s plight [his asserted permanent and irrevocable exclusion from benefits from the trust] is genuine or a contrived facade – and at  on the entirety of the evidence I arrived at “my conviction that W’s suspicions and her case against H and TB/RFG and the Trust are made out. Their position is an elaborate charade, the stage management of which has been conducted ruthlessly and without regard to cost.”
It did seem to me, as I listened to many of the submissions as to costs made on his behalf that this message, and the inferences and conclusions that might be drawn from it as to H’s conduct of these proceedings, were being ignored or brushed aside. His counsel, for instance, in written submissions made what looks on the face of it this generous concession:
“Naturally, we accept the findings made by the court that in a number of respects H’s evidence was unsatisfactory. (We accepted in closing that H was a poor witness, at least in the sense of not properly addressing the questions that were put to him, in a way that is frustrating for judge and advocate alike.) But the critical question is as to his actual carriage of the proceedings. Thus:
(a) It cannot be said that H has been guilty of a failure to disclose assets.
(b) H has been vindicated in his case as to his ability to have access to the funds within the trust. That was always true up to 2017; and became true because of his permanent exclusion from the trust in the course of the case.
(c) It has not been demonstrated nor found that H failed to disclose documentation that was available to him. Of course it was the case that the trustees were reluctant to provide documentation to H (as they said, pursuant to the judgment of Bannister J) or to the court. However, when they were produced by the trustees to H, he made them available promptly.”
It would be tedious were I to give even half an explanation why those three suggested virtues are not, in my view, even half-truths rather than the whole truth and nothing but. Who would think that my underlying conclusion was that there was throughout this case corrosive collusion between H and TB to distort the reality of the relationship between H and the millions in the Cand elsewhere within NHT, and that that conclusion could be dissipated by such bland assertions. One would think that H had throughout been meticulously compliant with the fundamental obligation to give full, frank and clear exposition of his financial situation: whereas the reality as I have found it to be is that from the very outset he has deliberately set about obscuring the true situation as to past, present and future.
H’s blatant dishonesty in relation to these proceedings cannot so easily be finessed away. The brazen declaration in 2015 (for the first time) that not only had the witness AC been confused and mistaken in April 2013 as to when they had last met before that moment, but that he too had been so confused and mistaken as to admit that AC’s evidence was correct and thus that he had lied, was breathtaking.
A comparison was drawn with the quality of the conduct evinced by the husband in US v. SR (No.3 needs) (Adverse influences/costs order reflecting litigation misconduct)  EWFC 24 “where the costs award which was made was designed, in part, to reflect the court’s opprobrium of the husband’s conduct in the litigation. That was a case where the husband did not merely attempt to conceal assets. The court held that it was a deliberate and sustained concealment compounded thereafter by a fraudulent presentation advanced on the basis of fabricated evidence. He misled the court, his former wife, her advisers and his own legal team. It is hardly surprising there that the ‘conduct’ trigger was met.” This was suggested to demonstrate how much less weighty was H’s conduct in this case. I do not agree.
It is trite to observe that each case turns on its own facts. Roberts J noted amongst other things: [at 69] “I cannot ignore the fact that virtually the entirety of these proceedings has been contaminated by the husband’s failure to disclose”; and [at 71] “For all these reasons it seems to me that to proceed on the basis of an ‘issue based’ costs order is to ignore the contagion which has infected the last three years of this litigation”; and [at 74] “There is no formulaic or accurate weighing mechanism for determining how the respective misconduct of the parties should be reflected in any order for costs”, and then in reference to M-T v T (Marriage: Strike Out)  1 FLR 1352, at  “Charles J described his knowledge of the case and his consequent ability to reach a fair conclusion as to the percentage of the overall costs burden which the husband should pay as ‘having lived through the litigation’. In terms, I can relate to that experience ‘having lived through this litigation’. There is little about its course, the underlying facts or the parties’ involvement with it that I do not know.”
All of those sentiments resonate for me in this case. Of course my obligation in defining costs liabilities (as throughout) is to achieve a result which is fair overall, to both parties. I would be being grossly unfair to W if I did not regard conduct as the prime touchstone in the very specific circumstances of this case, and in light of the stratagems employed by H as expressed and implied by my findings.
Nor has it been asserted by W nor found by the court that arrangements between H and the trustees are fake or a sham. [If the reference in para 170 to an elaborate charade is meant to suggest or
imply that the trust arrangements are invalid then it cannot stand against that concession by W. The validity of the trust arrangements stands unimpugned at the end of this trial and the court is referred to the skeleton argument provided by H that addressed the duties of the trustees in relation to disclosure; a position that was rightly adopted by the trustees so as not to breach their fiduciary duty; and as such not something that H can be criticised for.
The issue where the court has found against H in this respect is as to Mr Bennett’s true underlying motivation; and thus as to H’s own expectation that he may benefit from the value of the trusts in due course in some fashion.
The F & BPs from W as to the exclusion of H as beneficiary state:
W has given careful consideration to the question as to whether the NHT was in and of itself a sham. W does not pursue this argument and does not intend to do so at this hearing.
Although W then purported to cast doubt on the subsequent trust transactions, we pointed out that (a) they are in accordance with the advice of counsel (b) valid under BVI law and that (c) in any case a trust was like the curate’s egg: and could not be partly good and partly bad.
The issues: success or failure?
These points to my mind miss the point entirely. There is a clear distinction between the question whether a trust can be characterised as sham (which was, as rightly stated, not asserted at the hearing), and the conclusion which I reached that the case collusively advanced by H and TB was a rotten edifice founded on concealment and misrepresentation and therefore a sham, a charade, bogus, spurious and contrived. I do not shrink from applying to it the description fraud, a deliberate design to deceive, inflicted on W and on the court, and found by the court so to be.
W is criticised for some of the initiatives that she took and some of the applications that she pursued, and these I will evaluate below for the impact they may have on the costs outcome. But what started the ball rolling down what became an increasingly slippery slope was, in my view, H’s case designed to establish that the English court would have no jurisdiction to entertain the divorce, and in particular of course W’s financial applications, because of his domicile in Spain alleged originally to be of origin, and subsequently of choice. Although in the circumstances of his acceptance that I should dismiss that challenge I delivered no judgment, I believe that within this judgment there are passages which clearly show what I concluded: that H with TB was engaged over a number of years in investigating how best an imaginative but fundamentally contrived and false case on his domicile could be made initially to the English tax authorities, and subsequently persisted in the in-court domicile enquiry. Such an attitude and an endeavour pursued with such vigour and at such expense inevitably provoke suspicion, so that it is hardly surprising that W’s advisers and W herself did react. Slippery manoeuvres just as much as slippery slopes can be expected to bring out the truth of Newton’s third law of motion: For every action, there is an equal and opposite reaction.
I would certainly not categorise the applications for freezing injunctions as overreactions to the situation as it stood on 1 May 2013 when first they were granted. Freezing orders were entirely appropriate protection for W’s advisers to seek on her behalf in the immediate aftermath of the collapse of H’s disingenuous assault on jurisdiction. They incorporated limitations on H’s spending from the EFG facility, and it would be entirely normal as a matter of practice for the bank to be served with the orders. I have already explained why in my view it was when the bank found out that the trustees had not been entitled to make loans to H after he had ceased, albeit temporarily, to be a potential beneficiary in advance of the family’s move to France (which they discovered only when they conducted a review of the facility, that review admittedly prompted by service of the order), rather than the service of the order per se, which led ultimately to the withdrawal of the facility. So the repeated attempt to blame her for the ultimate collapse of the facility upon which the family’s finances were engineered fails, in my view, and what really happened it is impossible to ascertain without knowing quite what part TB played (as to which see [37 to 40] above).
In relation to costs incurred in respect of orders on and after 1 May 2013 made by me to do with applications for maintenance pending suit and A v A orders, and later for their variation or suspension, the suggestion is made that H should not have to bear the costs of awards “based on what has been found to be W’s incorrect assumption that H could access the trust’s assets”. But the true analysis is that it has not been until the final hearing that upon all the evidence I have been able satisfactorily to conclude that in fact H will in the future have funds from the trust by way of salary and bonuses as an employee rather than as a beneficiary made available to him as he has in the past, and as to which what would have been proper disclosure has never been made. The conclusions which underlie my finding that H has the ability to tap into this source and thus the faculty to pay the maintenance I have ordered were not conclusions which it was open to me to make at interim stages of the proceedings.
Mr Pointer moves to firmer ground in relation to that part of the overall financial remedy applications whereby W sought to establish NHT as a trust susceptible to variation under MCA section 24. This was a very long shot, as evidenced by the great difficulty W and her advisers placed in formulating a basis for the proposition. I have found there to be no such basis, and that plank of W’s case therefore sank. Moreover I have made plain my assessment of W’s credibility in the section to that effect from  onwards, and it is correct that in general terms I preferred what H had to say about the development of their relationship towards marriage, relevant as that was to the settlement issue.
It is also correct that the considerable strand of W’s case, the set aside application in relation to the Car Portfolio, foundered once relevant documentation was released by TB, belatedly in the context of the case some weeks after conclusion of the evidence and notwithstanding earlier repeated statements that such helpful documentation would be made available. H does still submit that TB’s actions were not his responsibility and that they should not count against him when costs are considered: but again that ignores my finding that they were collaborators in the joint endeavour to do W down. This set aside application, and the associated alternative formulation that the Portfolio should be declared to be H’s, both smack to me of the sort of reaction I have referred to above as to be expected if a wife (or a husband for that matter) is faced with a false presentation as gross as was here perpetrated.
And, finally and most fundamentally, the argument is urged that W has failed in her aspiration in her financial remedy application to obtain a multi-million pound lump sum award. She has certainly failed at this point to achieve a substantive capital award; but has for the time being achieved a periodical payments award of £120,000 more than the nominal order for which H contended, plus an adjournment of her outstanding capital claims. In my book the correct analysis is that neither party has won.
Costs: a principled approach
At the conclusion of the main part of this judgment at  above I advertised that “It will perhaps surprise no one that I do not regard this as a case where the ‘no order’ principle should prevail. W has failed in a number of the specific applications she has made, but in light of my findings it is perhaps to be anticipated that in the overall balance it is H who may face a substantive costs order. I would like at this stage simply to observe that impecuniosity is no shield against the making of an order.” That last was too unnuanced a statement, particularly (in situations to which FPR 28.3 applies) having regard to the requirement of rule 28.3(7)(f) that the court must have regard to the financial effect on the parties of any costs order. And so, it was submitted, that as W has failed to identify any source of funds with which to meet a costs award it would be plainly wrong to make an order against H, and moreover illogical and inconsistent having regard to my earlier observation [at 174] that to make a lump sum order against H would not encourage TB and the trust corporation to make the necessary funds available to him with which to me that obligation. The distinction is however that I have found that the flow of a salary and substantial bonuses will be reinstated (or another way found) so that H may maintain his living standards and meet whatever are his genuine liabilities, which as well as his costs liabilities to W will no doubt include those to his own lawyers. In short the requirement to have regard to the financial effect of a costs order on the parties has little if any impact in a case where the facts are found as here they have been. At least equal consideration, it seems to me, should in any event be given to the consequences, and the manifest unfairness, for W were I to accede to H’s aspiration that I should make no order.
In the quite other context of an award of costs against a local authority at the conclusion of care proceedings it was suggested that a reason for not passing from the “no order” general rule was to be found in the observation of Lord Phillips in Re T (Children) (Care Proceedings: Costs) (CAFCASS and another intervening)  UKSC 36,  1 WLR 2281 [at 44] that “the general practice of not awarding costs against a party, including a local authority, in the absence of reprehensible behaviour or an unreasonable stance, is one that accords with the ends of justice…” In that context, yes: but in this case I have no doubt that to categorise H’s behaviour as reprehensible is accurately to describe his conduct of the case.
The conduct of the parties in relation to an application concerning their financial affairs is a relevant consideration whatever the format of the litigation, and whatever the particular costs regime beneath which their application or applications fall to be considered. Where one party hatches a wholly deceptive presentation, pursues it persistently to the conclusion, and is found to have done precisely all of that, then he or she should expect no quarter from the court when it comes to costs. Such conduct unravels all and can and should in an extreme case where the conclusions are clear have clear costs condemnation meted out as the court’s response. Such cases are relatively few in number but this is such a case. Such cases should be fewer in number, and may become so if the costs outcome for such reprehensible conduct is clearly in prospective focus from the off.
Thus I conclude, when I stand back and address the global perspective of this litigation with a broad brush, that H should in principle take responsibility for W’s costs “at large”, that is to say those in relation to which there has not already been “no order”. I do not believe that such an approach contains any punitive element: it is no less an outcome than such aberrant conduct deserves. I impose it in this case because it is what I believe to be the fair, just and deserved order. I do not as part of the process of arriving at it add in anything extra for deterrent effect on other cases which will come before the court, although it will be good if it does sound a stern warning.
The question next arises whether I should discount that order by some percentage or amount to reflect the discrete issues upon which W failed, and in particular in this context her application to vary NHT as a trust and her applications in relation to the Portfolio of vintage and collectable cars; and in respect of those aspects of her own evidence which were less than credible.
I have decided not to apply any such discount. The reasons for this are various. I have already made the point that one thing can lead to another, and in this case undoubtedly the extreme and extremely improbable and inherently untrue presentation made by H prompted self-defensive attempts which it is possible to categorise as last-ditch.
Next, I bear in mind that on the analysis advanced by Mr Bates the costs she has incurred in relation to which “no order” is already the order amount to some £170,000. Of these over £120,000 relate to the costs incurred in the flurry of litigation relating to the Bentley, the fact and the effect of its charge to Beckmans, whether H’s solicitor had the requisite knowledge of H’s intentions for the disposition effected by that charge to be set aside, the fact and the effect of its saisie conservatoire on the driveway of Château T, and whether it should remain there or be brought to England with a view to potential sale. These episodes are reflected in my judgments of 5 March 2014  EWHC 455 (Fam) and 15 April 2014  EWHC 3769 (Fam). In the former at  I said:
In this case my present inclination would be to regard the sale of the Bentley in appropriate circumstances as desirable quickly if, for instance, that sale would provide W with some urgent relief from the parlous risk she runs of finding herself unrepresented in these proceedings because of H’s asserted inability to comply even in part with past orders without recourse to those proceeds.
In the April 2014 judgment at  and  I observed:
“The elements of H’s evidence and of the way in which he has deployed his case, from first to last (within which I include the ill-fated domicile débâcle), have not thus far helped him to begin to persuade me that he is not driven by hostility towards W and does not harbour amongst his motives a desire to vanquish her financially. Nor am I yet prepared to conclude that many of the sharp and stark inconsistencies (I believe I am justified in referring to them as lies) in his evidence, and the shifts and twists in his position, are all down to vagueness, imprecision and the pressure of being subjected to questioning. …
H’s evidence on the two days I heard from him last week was again, in my view at this juncture, replete with further examples [of lies]. So I remain to be persuaded that he is the victim of permanent exclusion at the instance of RFG, led by his long-term confidant and adviser Mr Bennett, and truly and validly divorced from access to any of the benefits of the £70 million or thereabouts which are the fruits of his business endeavours, now held within the New Huerto Trust. Nor do I yet accept as genuine RFG’s expressed intention (now indeed set in train) to pursue H in every relevant jurisdiction to recover the equity standing to his name in the Bentley, the Piper aircraft, land in Zermatt and the loan due to him from the SCI which owns the château where he continues to live, unless it be to remove those assets at least for the time being from the risk of depredation by court order.”
I cannot and do not seek to go behind the fact that I made no order as between the parties in relation to each of these sorties. With hindsight my better course might have been to defer decision and to reserve those costs until the conclusion of the main hearing. Nor have I lost sight of the fact that the appeal whereby Mr Pointer challenged whether jurisdiction exists to order sale of the Bentley in such circumstances was overtaken by events and that that issue has accordingly not been decided by the Court of Appeal. But I do bear in mind when considering whether to apply any discount to the costs order I shall now make against H that (the retained A v A £70,000 payment made by H apart) once H has met this order in full W will retain at least that £170,000 liability to her lawyers.
I have also considered whether or not I should make H some allowance for the fact that in the ordinary course of an orderly and honestly conducted application W would have incurred costs in relation to which the general “no order” rule might well have been applied. The same consideration might well have found reflection in the case of Thiry v Thiry  EWHC 4046 (Fam) where I ordered the dishonest husband to pay 100% of the wife’s costs on making a capital award which [in 2] I described as “restorative justice rather than any exercise of redistributive discretion, without involving (save to the self-inflicted extent that the husband’s conduct of the litigation has inflated the wife’s costs bill and thus my costs award against him) any punitive element”. Despite its own very special features what that case does share with this is the scandalous and outrageous conduct and attitude displayed by each husband.
W asks that any assessment of costs should be on the indemnity basis. H resists this, and invites my attention to a number of authorities down the years. I however regard it as self-evident that in the light of my principal judgment any assessment should be on the indemnity rather than the standard basis. But for anyone who might not agree, from the authorities to which reference was made I draw and rely upon a few quotations.
In 2009 Coulson J in Noorani v Calver (No 2 / Costs)  EWHC 592 (QB) stated [at 8 and 9] that:
“Indemnity costs are no longer limited to cases where the court wishes to express disapproval of the way in which litigation has been conducted. An order for indemnity costs can be made even when conduct could not properly be regarded as lacking in moral probity or deserving of moral condemnation: see Reid Minty v Taylor  1 WLR 2800. However such conduct must be unreasonable ‘to a high degree. “Unreasonable” in this context does not mean merely wrong or misguided in hindsight’: see Simon Brown LJ (as he then was) in Kiam v MGN Limited No 2  1WLR 2810.
In any dispute about the appropriate basis for the assessment of costs, the court must consider each case on its own facts. If indemnity costs are sought, the court must decide whether there is something in the conduct of the action, or the circumstances of the case in question, which takes it out of the in a way which justifies an order for indemnity costs: see Waller LJ in Excelsior Commercial and Industrial Holdings Limited v Salisbury Hammer Aspden and Johnson  EWCA (Civ) 879.”
He went on to observe at  that “the claimant launched defamation proceedings either knowing that they were based on a lie or … knowing that his case depended on a number of odd coincidences. … And yet he maintained the claim until the third day of the trial …” and continued at  “In those circumstances it is appropriate for the court to mark its great concern about the underlying claim and the claimant’s conduct of it. One way in which that can be done is by requiring the claimant to pay the defendant’s costs on an indemnity basis. This was a hopeless claim from the outset, and I find that the claimant knew it… The claimant acted unreasonably to a high degree by commencing these proceedings let alone maintaining them…”
Each of these descriptions, translated into the context of this case, fits H’s conduct of this litigation, and stands in sharp contrast with the benign view taken by the same judge when rejecting an application for indemnity costs in Brit Inns Ltd v BDW Trading Ltd  EWHC 2489 (TCC), 1 Costs LR 72. There at  he stated: “Because the claims were not deliberately exaggerated, and because there is nothing else in the claimants’ conduct which might be regarded as so out of the ordinary as to warrant an express statement of the court’s disapproval, it would not be appropriate to make an exceptional order for indemnity costs.” In this case H’s conduct certainly has displayed features which, happily, are out of the ordinary and which certainly warrant an indemnity order to mark the court’s disapproval.
In reaching that conclusion I have borne in mind all the factors set out at CPR 44.2(4) and 44.2(5). I hope it is clear, in the light of the over-arching impact of my findings as to the reality of H’s situation when contrasted with the presentation he pursued as a prime circumstance relevant in this case, why while having had what I regard as proper regard to them I have not given computational effect to the following considerations on W’s side of the balance highlighted in these provisions:
(4)(b) whether a party has succeeded on part of its case, even if that party has not been wholly successful; and
(5)(b) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;
(5)(c) the manner in which a party has pursued or defended its case or a particular allegation or issue; and
(5)(d) whether a claimant who has succeeded in the claim, in whole or in part, exaggerated its claim.
I will order H to pay all W’s costs of and incidental to all proceedings between them in relation to financial matters heard on and since 1 May 2013, to include costs on any occasion reserved but to exclude all costs in relation to which it has already been ordered that there be no order, such costs (if not agreed) to be subject to detailed assessment on the indemnity basis.
“Where the court orders a party to pay costs subject to detailed assessment, it will order that party to pay a reasonable sum on account of costs, unless there is good reason not to do so.”
I have not in this case had the opportunity (as I did in Thiry) of considering a full and detailed breakdown of the costs incurred by W, and therefore feel obliged to leave open the option of what no doubt would be a lengthy, complicated and fully contested assessment. But I can, I believe fairly, diminish the prospects that time (not least court time) and expense will be taken up in such a venture by adopting the following approach. Having regard to the very considerable disparity between the costs liability incurred by H with his lawyers in the English finance-related proceedings (and recognising that they his team were more numerous than those employed by W) of about £870,000 overall, I will take the £588,500 estimate for the bill run up by W, and within it Mr Bates’ sum of £417,829 for the “costs at large”, as fair figures upon which to base my order. I take the view (which can only be impressionistic, but then in many ways that is of the essence of the broad and entirely fact-sensitive discretionary exercise which costs awards in this sort of situation must be) that H would be unlikely to achieve as much as a 20% reduction on detailed assessment, bearing in mind that the onus will be on him to establish unreasonableness rather than for W to surmount the test of proportionality.
I will therefore adopt 80% of £417,829 as the measure of the on account award I will make. This comes out as £334,263. I have decided against allocating the £70,000 received by Withers pursuant to the A v A order so as to set it off against this cost award. The order will therefore require H to pay £334,263 to W within 14 days of this judgment being finally handed down. Interest at judgment debt rate will accrue from the date of the order, that is to say from the date of the costs award, pursuant to the provisions of section 17 of the Judgments Act 1838.
RELATED POSTS ON INDEMNITY COSTS
- Court of Appeal overturns award of indemnity costs.
- Another case where indemnity costs ordered – for part of the claim.
- Joinder of a party for costs; indemnity costs and comments on costs outside the budget
- More on indemnity costs and the summary assessment of costs at trial.
- Costs at the end of the case: the judge can make observations about matters outside the costs budget
- When will indemnity costs be ordered? A High Court decision considered?
- No general principles apply to award of indemnity costs: Court of Appeal decision.
- Indemnity costs against funders: who pays what for when?
- No indemnity costs: Gorgeous Beauty 2
- Indemnity costs, costs budgeting and witness statements
- The risk of indemnity costs: what are you going to tell your client?
- Costs budgeting, indemnity costs and payment on account.
- Anatomy of a post-Denton application for relief from sanctions: costs, indemnity costs and everybody is at risk as to costs.
- A withdrawn Part 36 offer does not attract indemnity costs.