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APPEALS/COSTS: Rothwell v Rothwell [2008] EWCA Civ 1600

Date:25 FEB 2009

(Court of Appeal; Thorpe and Jackson LJJ; 9 December 2008)

The husband sought to appeal an order made in ancillary relief proceedings. The Court of Appeal directed an oral hearing of the husband's application, on the basis that the judge had arguably misunderstood some of the financial information, and had thereby been led into a mathematical error. The Court also issued letters inviting the husband and wife to resolve outstanding issues within the court's ADR scheme, on the basis that there should be no further costs if mediation were successful. Mediation between the parties resulted in a clear agreement. However, the husband then appeared to resile from the agreement, in that he refused to honour a cheque sent in partial settlement of the wife's mediation award. After the Court of Appeal directed an oral hearing to show cause why the appeal should not be disposed of in accordance with the mediated agreement, the husband indicated that he was content for there to be a consent order in the terms of the mediated agreement. The wife sought her costs for the period since the mediation.

The wife would have incurred some professional costs after the mediation even without the husband's vacillation. There would be no order as to costs. The husband's concession that the proceedings could be disposed of by a consent order in terms of the mediated agreement had been wisely made. The principle that once the parties had arrived at a compromise of litigation, the court would uphold and enforce that compromise, absent some vitiating element, applied in the Court of Appeal to a contractual compromise of pending appellate proceedings. The Court of Appeal ADR scheme had had a relatively low take up from family appeals, but an encouragingly high success rate, and it was important that the court should signify that if parties arrived at a clear compromise, within the mediation process, the compromise would be robustly upheld by the court.