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Evidence, Practice and Procedure: Consent orders and costs guidance from the Court of Appeal
Date:12 JUL 2013

David Burrows - Practice of Family Law: Evidence and Procedure

David BurrowsEmezie v Secretary of State for the Home Department [2013] EWCA Civ 733 was an appeal allowed against a costs order - ‘no order as to costs' - made by Mostyn J in a judicial review housing case, where the housing authority settled a judicial review case after issue by the applicant. Only after issue of proceedings did they fully concede the applicant's claim which had been fully articulated by her solicitors in their pre-action protocol letter and subsequent correspondence. Mostyn J had not, it seems, been referred to the most recent guidance on costs and judicial review consent orders.

So why is this of any relevance here? It is relevant because of the very clear guidance given on costs alongside consent orders, and the court's reference to its earlier M v London Borough of Croydon [2012] EWCA Civ 595 (see Emzie at [3]). The guidance enunciated in M v Croydon could as easily be applicable in a family case where terms are finally agreed - perhaps against a background of dilatory or reticent disclosure; where an apparent agreement or abitral award was followed by litigation over whether there was an agreement but then settled at the eleventh hour; or even where Calderbank correspondence preceded an agreement (which agreement took the negotiations outside the FPR 2010 r 28.3(5) costs strait-jacket).

In M v Croydon the Court of Appeal (Lord Neuberger MR) stressed what represented to him the three principles of costs in civil litigation (paras [44-46]). First, costs orders are in the discretion of the trial judge: in Croydon the court is seeking to give guidance, but each case depends finally on its facts (see para [65]). Secondly:

[45] ... as has long been the case in English civil litigation, and is expressly stated in CPR 44.3.2(a), the general rule in all civil litigation is that a successful party can look to the unsuccessful party for his costs. Of course, as CPR 44.3(2)(b), (4), (5) and (6) demonstrate, there may be all sorts of reasons for departing from this principle....

(This provision does not apply in family proceedings (FPR 2010 r 28.2(1)); but see Gojkovic v Gojkovic (No 2) [1992] Fam 40, [1991] 2 FLR 233, CA: family judges have to ‘start somewhere...', said Butler-Sloss LJ; so, she suggested, they should start with costs following the event). Thirdly, the way in which lawyers are funded ‘will rarely, if ever, make any difference to that party's right to recover costs'. On these bases, said Lord Neuberger:

[47] It is open to parties in almost any civil proceedings to compromise all their differences save costs, and to invite the court to determine how the costs should be dealt with. The court has jurisdiction in such a case to determine who is to pay costs, but it is not obliged to resolve such a free-standing dispute about costs. Accordingly, by settling all issues save costs, the parties take the risk that the court will not be prepared to make any determination other than that there be no order for costs not only because that is the right result after analysing all the arguments, but also on the ground that such an exercise would be disproportionate.

Lord Neuberger's conclusion applies to any ‘civil litigation, particularly where a claim [is] settled:

[60] ... [T]here is, in my view, a sharp difference between (i) a case where a claimant has been wholly successful whether following a contested hearing or pursuant to a settlement, and (ii) a case where he has only succeeded in part following a contested hearing, or pursuant to a settlement, and (iii) a case where there has been some compromise which does not actually reflect the claimant's claims. While in every case, the allocation of costs will depend on the specific facts, there are some points which can be made about these different types of case.

If there is a clear arbitral award or a settlement which one party then seeks later to oppose; but which after procrastination by that party there is an order, is there any reason why - at least for the date of the agreement or award - there should not be an order; and even more so if one party has to issue proceedings to nail down the agreement (and see the order for costs made by Parker J in T v T [2013] EWHC B3 (Fam), Parker J at para [72]).

David Burrows is author of Practice of Family Law: Evidence and Procedure (Jordans, 2012). Costs is dealt with in Chapter 13.

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.