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H(S) v H [2005] EWHC 247 (Fam)

Circumstances in which a judge can exercise his discretion to substitute an order for costs in ancillary relief proceedings.

H(S) v H [2005] EWHC 247 (Fam)

Family Division: Sumner J (24 February 2005)

Summary
Circumstances in which a judge can exercise his discretion to substitute an order for costs in ancillary relief proceedings.

Background
This was an appeal by the wife against a costs order made at the conclusion of a nine-day ancillary relief hearing before the district judge, in which he said that 'the history is complicated; the factual disputes are legion'. The costs order had determined that the wife should pay the husband's costs from the date of an offer made by the husband prior to the hearing.
It was agreed that the test to be applied on appeal was that set out in Cordle v Cordle [2001] EWCA Civ 1791, namely that a procedural irregularity must be shown. The judge referred to the applicable rules – Civil Procedure Rules 1998, r 44.3 and Family Proceedings Rules 1991 (FPR 1991), rr 2.69 to 2.69D – and considered the effect on those rules of Norris v Norris [2003] EWCA Civ 1084.

Judgment
Held, allowing the appeal, that the wrong date had been taken as the one from which costs should run. Accordingly, the question of costs fell to be decided anew according to the principles in FPR 1991, r 2.69D; and a new order for costs, adjusted in the wife's favour, would be substituted for the earlier order.

Read the full text of the judgment