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Evidence, Practice and Procedure – Costs, a ‘clean sheet’, and a starting-point for costs orders

Date:12 SEP 2013
Solicitor Advocate

David Burrows - Practice of Family Law: Evidence and Procedure

David BurrowsIn Solomon v Solomon [2013] EWCA Civ 1095 Ryder LJ gives a welcome reminder of the Gojkovic costs decision of Butler-Sloss LJ - namely, that the award of costs in family proceedings may be linked to the civil proceedings general principle: that costs follow the event (see now CPR 1998, r 44.2(2)); although he linked Gojkovic to the rather different ‘clean sheet' principle of Wilson LJ (Judge v Judge [2008] EWCA Civ 1458, [2009] 1 FLR 1287).

 Solomon was a husband's appeal against an order striking out his application to set aside a transaction (Matrimonial Causes Act 1973, s 37(2)) and a consequent order for costs. Since he was refused permission to appeal, little need be said of the case. In upholding the order for costs, however, Ryder LJ (with whom Maurice Kay and Sullivan LJJ agreed) said:

 [22] The judge correctly stated the general rule [that in financial remedy proceedings costs orders are not made: FPR 2010, r 28.3(5)] 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 Gojkovic (No 2) [1991] 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 prima 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.'

 The ‘clean sheet' cases - Judge and Baker v Rowe [2009] EWCA Civ 1162, [2010] 1 FLR 761 - say the opposite of what Ryder LJ stated. The rule that costs follow the event is excluded from family proceedings. Rules of the Supreme Court 1965, Order 62 r 3(3) (that if a costs order is to be made: ‘the court shall order the costs to follow the event') did not apply in family proceedings. FPR 2010, r 28.2(1) has the same effect: CPR 1998, r 44.2(2) (unsuccessful party pays the successful party's costs) is excluded from family proceedings.

 The concept of the ‘clean sheet' derives from Wilson LJ in Judge; affirmed by Wilson and Ward LJJ in Baker v Rowe. In Judge the court was proceeding under FPR 1991, which by then incorporated CPR 1998, Part 44 (in the same terms as the present Part 44). Of the wife's appeal on costs Wilson LJ said:

 [53]   Thus there was no ‘general rule' in either direction for the judge to apply to his decision. He had before him a clean sheet; but by reference to the facts of the case, and in particular, the wife's responsibility for the generation of the costs of a failed application, he remained perfectly entitled to record upon it, as he did, that he would start from the position that the husband was entitled to his costs.

 Gojkovic was not referred to by the Court of Appeal in either of these cases. Its revival by Ryder LJ is welcome (see commentary in The Family Court Practice 2103 at p 2077). The effect of Gojkovic is to move on from Judge and suggest to judges that where an exercise of discretion arises, there must be a ‘starting-point', not just a clean sheet; and if there is to be a starting-point - suggests Butler-Sloss LJ, as quoted above - let it be, as Ryder LJ agrees in Solomon, that ‘costs follow the event'.

 The position in family proceedings on costs can therefore be summarised:

 That orders for costs can be made in family proceedings, though special rules may apply (eg in children proceedings) (SCA 1981, s 51(1); CPR 1998, Part 44).

  • There is no rule that costs ‘follow the event' (CPR 1998, r 44.2(2) disapplied by FPR 2010, r 28.2(1)).
  • Costs orders may not be made in final hearings of matrimonial and civil partnership financial remedy applications (FPR 2010, r 28.3(5)), save in cases of ‘conduct' in the proceedings (r 28.3(6)).
  • In all other financial remedy applications, and applications interim to all financial remedy applications (r 28.3(4)(b)(i)), costs orders may be made (see table in Family Court Practice 2013 at 2075). In law the judge has a ‘clean sheet'; but if a starting-point be needed then Gojkovic suggests a way...

 David Burrows, solicitor advocate, is author of Practice of Family Law: Evidence and Procedure (Jordans, 2012). Costs and the ‘clean sheet' is dealt with in Chapter 13, especially at 13.41.