E v L (2021) EWFC 63 Short childless marriage - Phase 2 - Costs - importance of being reasonable and making offers

This article follows on from the decision in phase 1 in which Mostyn J delayed deciding the question of costs for a few days (in the forlorn hoe the parties might agree them!).  It is interesting and adds a touch of levity.  His comments relate to the parties’ behaviour during the litigation process which he  had alluded to it in his substantial judgement!

Of the husband, the judge said he was not prepared to accept that the fair disposition would be an equal sharing of the marital acquest, and his case was that the wife’s claim should be confined to the wife’s needs, very conservatively assessed.

The husband’s stance was intransigent which rendered the case unsettleable.

As Mosyn J said ‘It was clear to me from the start that this was a case which cried out for the application of the yardstick of equality to the money made during the marriage’.

In order to fortify his position the husband ran a disguised conduct case [at every possible opportunity].  At every turn he took the opportunity to rubbish the quality of the marriage.

In my judgment, the husband has not negotiated reasonably and responsibly within the terms of paragraph 4.4 of FPR PD 28A[2].  As I have said before, and will no doubt have cause to say again, if you do not negotiate openly, reasonably and responsibly you will suffer a penalty in costs.

The husband has not conducted the litigation reasonably by seeking to insinuate conduct into the proceedings. Such behaviour should be reflected in a costs award: see FPR 28.3(6)[3] and (7)(d)[4]

Mr Glaser QC argues that 25% of the wife's costs should be met by the husband to reflect his unreasonable litigation conduct and his refusal to negotiate openly, reasonably and responsibly. This equates to £109,000 and the judge agreed that was a fair and just figure. 

Turning to the conduct of the wife the judge wanted to reflect her misconduct in snooping on the husband's computer and copying his private correspondence, including privileged material.  The judge said it would have given rise to a breach of confidence in the County Court, but damages would be a few thousand pounds and would not amount to conduct within theses proceedings. 

The husband had filed a statement of costs (£23,420) with regard to that issue and the judge decided the wife should pay that full amount so that the message goes out that if you behave in such a way you are going to suffer a heavy penalty in costs.

The end result being that the husband was ordered to pay the wife £85,600.

So yet again Mostyn J warns litigants to behave in accordance with the rules or face a penalty.  For an earlier cannon blast on litigation behaviour from Mostyn J see OG v AG [2020] EWFC 52, as referred to in my earlier article ‘Financial remedy - For the love of dogs and litigation ! - AA v AB 19th March 2021’


[2] 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. This may be of particular significance in applications for variation orders and interim variation orders or other cases where there is a risk of the costs becoming disproportionate to the amounts in dispute.The court will take a broad view of conduct for the purposes of this rule and will generally conclude that to refuse openly to negotiate reasonably and responsibly will amount to conduct in respect of which the court will consider making an order for costs. This includes in a ‘needs’ case where the applicant litigates unreasonably resulting in the costs incurred by each party becoming disproportionate to the award made by the court. Where an order for costs is made at an interim stage the court will not usually allow any resulting liability to be reckoned as a debt in the computation of the assets.

[3] 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).

[4] the manner in which a party has pursued or responded to the application or a particular allegation or issue;