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Gamboa-Garzon v Langer [2006] EWCA Civ 1246

Appeal against a refusal to award a costs order in proceedings combining ancillary relief and a civil claim by the husband's girlfriend against the wife. Appeal allowed.

In this judgment Wilson LJ fund the trial judge's decision not to award a costs order was severely flawed, particularly his finding that the girlfriend's solicitors had not reacted promptly to developments in the proceedings.



Neutral Citation Number: [2006] EWCA Civ 1246





Royal Courts of Justice
London, WC2

Tuesday, 25th July 2006

B E F O R E:



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(DAR Transcript of Smith Bernal Wordwave Limited 190 Fleet Street, London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

MR ANDREW WILLINS (instructed by Messrs Bross Bennett, London N6 5HX) appeared on behalf of the Appellant ("the girlfriend").

MR RICHARD TODD (instructed by Mischcon de Reya, London WC1R 4QD) appeared on behalf of the Respondent ("the wife").

(As Approved by the Court)

Crown copyright©

1. LORD JUSTICE WILSON: Miss Gamboa-Garzon, whom, without intending any disrespect, I will describe as "the girlfriend", appeals against the refusal of Mr Stephen Bellamy QC, sitting as a deputy High Court Judge of the Family Division on 14 November 2005, to make an order for costs in her favour against Mrs Langer, whom I will describe as "the wife". Instead the judge made no order as to costs between them.

2. In that it was, according to the girlfriend, only as a result of delays on the part of the wife that he was then adjourning the proceedings, she contends that the judge should have ordered the wife to pay her costs of that hearing and all other costs thrown away as a result of the adjournment.

3. Before the judge were two different sets of proceedings which had been directed to be heard together. The first was the wife's application against Mr Langer, whom I will describe as "the husband", for ancillary relief following their divorce. The second was a claim brought by the girlfriend against the wife in the Central London County Court and transferred to the Family Division to be heard together with the wife's application for ancillary relief.

4. The girlfriend's claim arose out of the action of the wife on 4 March 2004 in obtaining access to a safety deposit box at Selfridges and in removing therefrom a Rolex watch and US$85,000 in cash. The box had initially been rented by the husband and wife, albeit solely in the wife's maiden name, and they had each been keyholders. At some point, however, the wife had ceased to be a keyholder and the box had continued to be used only by the husband. The circumstances in which the wife obtained a key to the box for use on 4 March 2004 are as yet a mystery. At all events, upon the wife's removal of the watch and the cash, the girlfriend, with whom the husband has been living since his separation from the wife in 2002, at once alleged that the watch and the cash were her property. The girlfriend is or was a table dancer; and she alleged that the cash represented savings from her earnings. By her claim in the county court the girlfriend sought the return of the watch and the cash. By her defence the wife admitted removal of them but put the girlfriend to proof that they belonged to her. It is the wife's case that, deposited in a box then under the control only of the husband, the watch and the cash belonged to him.

5. In my view it was predictable and appropriate that the county court should transfer the girlfriend's claim to be heard together with the wife's claim for ancillary relief. On 1 February 2005 a district judge of the Family Division directed that both sets of proceedings be listed for final hearing before a judge of the Division on five days beginning on 14 November 2005. Prior to its transfer to the Family Division the girlfriend's claim had been estimated on both sides to require a hearing of two days.

6. On 4 March 2005 Singer J gave various directions in both sets of proceedings: that in the civil action the girlfriend and the wife should file any evidence by 4 June 2005; that in the proceedings for ancillary relief the wife should file a narrative statement by 4 May 2005; that the husband should answer it by 4 July 2005; that in those proceedings the wife should be permitted to instruct a forensic accountant; that the letter of instruction be sent to her accountant no later than 11 March 2005, with a copy to the husband; that her accountant's report be served no later than 12 May 2005; that the husband should have permission to instruct an accountant to respond; and that any such response be served no later than 14 July 2005.

7. The wife disobeyed almost all these directions. Although, unlike the girlfriend, she did not serve any evidence in relation to the civil proceedings, the judge's direction in that regard had been only permissive; and so we can pass on. The wife did not serve a narrative statement in connection with the proceedings for ancillary relief by 4 May 2005 or at all. And, despite chasing letters from the husband's solicitors in March, April and May 2005, she did not instruct her forensic accountant until 5 August 2005, almost five months beyond the deadline. Nor did she even then forward to the husband a copy of the letter of instruction: she did so only two months later, namely on 12 October 2005. Upon receipt of the copy letter to the accountant, and in the light in particular of the fact that Singer J had granted him permission to serve accountancy evidence in response, the husband's solicitors, by a letter to the wife's solicitors dated 14 October 2005, stated that it was clear that the trial fixed to begin on 14 November could not be effective; and they invited the wife to apply to vacate the hearing. At first the wife's solicitors did not accept the need for an adjournment; and they added that the delay had been caused by reason of her ill-health and by her problem in funding the litigation. The husband's solicitors responded that it was fanciful to consider that the hearing could proceed.

8. By letter dated Friday 28 October 2005 the wife's solicitors bowed to the inevitable. They informed the husband's solicitors that they agreed that the substantive hearing should be adjourned but indicated that they intended to use the first day of the hearing as, instead, an appointment for further directions. They enclosed a proposed letter to the Clerk of the Rules, Family Division, and invited the husband's solicitors to endorse their consent upon it and return it to them. In the letter to the Clerk of the Rules, also dated 28 October, which was indeed endorsed and returned by the husband's solicitors on that date and may very well have been despatched to the Clerk of the Rules on that date, or if not certainly on Monday 31 October, the wife's solicitors, under the heading and number only of the divorce proceedings, introduced themselves as acting for the wife and the husband's solicitors as acting for him. They continued as follows:

"Unfortunately the matter is not yet ready for hearing and after considering matters with our client and counsel we have reluctantly concluded the matter should be adjourned. The other side do not object.

However we wish to seek further directions from the court in relation to the conduct of the proceedings and counsel advises that these will occupy the judge for between half a day and one day. In the circumstances, we should be grateful if you would note the position and make the necessary adjustments to the listing."

9. The curiosity of that letter needs little emphasis. There was no reference in it to the civil action; nor to the girlfriend; nor to her solicitors; nor to the fact that the wife's solicitors had not been in communication with them in relation to a possible adjournment; nor, in particular, to the fact that there had been no indication whatever on the part of the girlfriend's solicitors that she agreed to an adjournment. Yet the wife's solicitors were not only seeking an adjournment but indicating that, in that there was no relevant objection, the Clerk of the Rules should, without any need for judicial direction, simply proceed to vacate all but the first of the dates fixed for the substantive hearing and, by reducing the hearing to a maximum of one day, should thereby preclude the substantive hearing from proceeding at all.

10. I have no doubt that the conduct – or, to speak plainly, the misconduct – of the wife's solicitors in sending that letter was born of momentary forgetfulness that the girlfriend was a party to one of the matters fixed to be heard on 14 November. Grave though its effect, there was nothing sinister in what they did.

11. On Thursday 3 November 2005 the girlfriend's solicitors wrote to the wife's solicitors as follows:

"We understand from our client that there has been talk of the trial being adjourned …

It may be that our client is mistaken as we have heard nothing from you regarding any adjournment and we have certainly not agreed to any adjournment on her behalf. This being so, we are proceeding on the basis that this matter remains listed for trial on 14 November and we are delivering our brief to counsel."

Mr Willins, counsel for the girlfriend, was later to tell the judge that his brief was duly delivered on that day.

12. By reply dated Friday 4 November the wife's solicitors wrote to the girlfriend's solicitors as follows:

"It is the case that we and [the husband's solicitors] have agreed this matter should be adjourned on the 14 November save that the first day of the trial should be used for directions.

We apologise for the fact that we did not contact you with regard to this matter. It would appear that [the husband's solicitors] did not either.

That said, your client must be aware that the matter has been adjourned. She is cohabiting with [the husband].

… We enclose a copy of our letter to [the husband's solicitors] together with a copy of the letter, which was sent to the Clerk of the Rules. Since you are a party to the proceedings, we would now invite you to also agree the substantive matter should be adjourned on the 14 November and that this date should be treated as a Directions Appointment only. If you are not prepared to proceed in this matter [sic], then we will seek an adjournment of that part of the case which relates to your client on the 14 November and, at the same time, seek an order for costs."

13. It seems to me that the invitation by the wife's solicitors to the girlfriend's solicitors that they should agree an adjournment was disingenuous. For the wife's solicitors had by then undoubtedly already achieved an adjournment by having secured a re-listing only for one day upon a false representation that all relevant parties to the proceedings had agreed to it. Indeed, accurately but quite inconsistently with that invitation, they had already stated in the letter that "the matter has been adjourned." The reference to seeking an order for costs against the girlfriend was surely bravado or attempted intimidation.

14. By letter dated Wednesday 9 November 2005, the girlfriend's solicitors responded. They protested that the wife's solicitors had falsely implied to the Clerk of the Rules that all relevant parties had agreed to the adjournment. They made clear, however, that it was only on the date of their letter that they had learnt from the office of the Clerk of the Rules that she had indeed vacated the five day fixture. They indicated that they would be articulating strong protest to the judge on 14 November. They added:

"Our client's only remedy is now to ask the court to separate out the civil claim and to list that for an early hearing." (emphasis supplied).

15. In reply dated Thursday 10 November the wife's solicitors alleged that the letter dated 9 November had mystified them; and, with whatever degree of unreality in the light of the alteration of listing which they had already achieved, they said that, if the girlfriend would not consent to an adjournment, the wife would be applying for one on 14 November.

16. Late on Friday 11 November 2005 Mr Todd, counsel for the wife, sent to counsel for the husband and for the girlfriend a note for intended submission to the judge. By the draft order which was attached thereto, Mr Todd indicated that he was intending at the hearing to press not only for various directions against the husband but for a direction that the girlfriend should disclose certain documents, namely material submitted by her to the Immigration and Nationality Department in order to obtain her British passport, a copy of her mortgage application referable to a property purchased by her and her tax returns for the last two years.

17. In his note for the judge, dated Monday 14 November itself, Mr Willins protested vigorously at the adjournment of the substantive hearing and at the way in which the wife's solicitors had disabled him and his solicitors from protesting about it until after it had been secured. In my view it is quite clear that Mr Willins was then accepting that the trial of the girlfriend's claim could not then and there proceed. That concession was inevitable: first because, as things stood, her claim was to be heard together with the application for ancillary relief which was agreed to be unready for hearing and which had been adjourned; and, second, because the girlfriend's claim had carried a two-day time estimate, whereas only one day was now available for consideration of both matters. Instead, therefore, Mr Willins, both in his note and in his oral submission, tried to secure a direction which would lead to the disposal of the girlfriend's action less belatedly than if it continued to be linked to the application for ancillary relief. Either Mr Willins or his solicitors had learnt that an adjournment of both matters to the next available space in the diary of the Family Division would be an adjournment until October 2006 (indeed today we have been told that in fact it was to be until December 2006); but he or they had also learnt that, were the girlfriend's action to be severed from the application for ancillary relief and transferred to the Queen's Bench Division, it could, with its two day time estimate, be determined in February 2006. Mr Willins thus pressed for severance and transfer. It is necessary, however, to reiterate the obvious point, first articulated by the girlfriend's solicitors in their letter dated 9 November, namely that the application for transfer was precipitated by the need for an adjournment and would obviously never have been made if the substantive hearing had proceeded on 14 November. As Mr Willins put it in his oral submission to the judge:

"We submit that there are three powerful reasons why it should be transferred. The first, to answer Mr Todd's question, namely 'what has changed since the date of the order of Singer J? What has changed since the order in the Central London Court on 28 December 2004?' is the wife's full scale disregard for orders made by this court."

Later Mr Willins submitted:

"Enough is enough. How long must this claimant put up with delays which, even on Mr Todd's case, are none of her making whatsoever …? She is completely blameless in all of this. So, my final submission is that it should go off to the Queen's Bench Division where it can be heard in February."

In the event the application for transfer to the Queen's Bench Division was refused. In effect the judge held that the reasoning which had led to the joinder of the proceedings still obtained but that it would be open to the girlfriend to reapply for transfer at the conclusion of a hearing for directions and of a Financial Dispute Resolution meeting which he directed to be heard in about April 2006 but which we have been told has been adjourned to be heard in October 2006.

18. Then came brief submissions to the judge in relation to Mr Todd's informal application that the girlfriend should be ordered to give the specified disclosure. Mr Willins' objections, put very shortly to the judge, were that the application had been made only a few working hours previously; that the wife had presumably considered until then that the issues between her and the girlfriend did not need elucidation by the suggested disclosure; and that it was "an unnecessary and disproportionate fishing expedition". In the event, however, the judge directed the girlfriend to make the disclosure sought on behalf of the wife.

19. At the end of the hearing, at which various directions in the application for ancillary relief, disputed as between the wife and the husband, had also been given, counsel for the husband and then Mr Willins asked for orders for their clients' costs thrown away to be paid by the wife. Mr Todd countered with a suggestion that, as between the husband and the wife, costs should be reserved but that the girlfriend should pay the wife's costs of the hearing. It seems that the primary ground of Mr Todd's cross-application for costs was that the husband must have told the girlfriend about the growing likelihood of an adjournment and/or that her solicitors had failed to accede to the invitation in the letter of his solicitors dated 4 November to agree that her action be adjourned. That was an invitation which I have already described as disingenuous. The second ground of Mr Todd's cross-application was that other issues determined on that day, in particular the issue of transfer to the Queen's Bench Division, had been decided adversely to the girlfriend.

20. The judge explained his decision to make no order as to costs between the girlfriend and the wife in the following words:

"The reason being that one, I think it did become clear prior, several weeks prior to today, or a couple of weeks prior to today, that this trial could not proceed. Two, the applications that [the girlfriend] has made to transfer and opposition to those directions which were sought in the civil proceedings she has substantially failed. However, she is here today on an application for directions and I am afraid that I do see it that these directions would have been unnecessary if there had been compliance with the order for the filing of evidence, in particular, the accountant's evidence … prior to 5 August 2005. Doing the best I can between the parties of that, I think the right order is no order."

Then, by contrast, the judge condemned the wife to pay the husband's costs of the hearing because the wife had been responsible for the abortion of the substantive hearing; and he assessed those costs at £3,000.

21. Recognising that, in order to entitle this court to interfere with a judge's discretionary determination as to costs, an appellant needs to show, in effect, that it has been reached by reference to an irrelevant consideration or by failure to refer to a relevant consideration or that it is otherwise plainly wrong, Mr Willins castigates both of the judge's reasons for depriving the girlfriend of her costs as irrelevant.

22. The first stated reason of the judge was that it had become clear several, or a couple of, weeks earlier that the trial could not proceed. There is some ambiguity even about what the judge thereby meant to convey. Was he suggesting that, in that the girlfriend and the husband were cohabiting, she would have learnt from him in the days following 14 October that it seemed that the hearing could not proceed and that, somehow, she had unreasonably failed to react to what she had thus learnt? Or was the judge referring to the belated exchanges between the wife's solicitors and the girlfriend's solicitors and in effect accepting the submission made by Mr Todd that the girlfriend's solicitors had unreasonably failed to accept the invitation on 4 November to agree to an adjournment? For the purposes of this appeal Mr Todd, aware that the judge's reference to "several … or a couple of weeks prior to today" does not readily apply to the invitation made by his solicitors in their letter dated 4 November, suggests that, even assuming that he did not accept his submission in relation to that letter, the judge was, in his words "entitled to draw the inference from how close the husband and the [girlfriend] were [that] they would have discussed a possible adjournment."

23. I am of the view that, with respect to the judge, it does not matter which of the alternative constructions of his comment is correct. There is no doubt that at some stage – the date being entirely unknown – the husband told the girlfriend about the apparent inability of the wife to present her case at the substantive hearing. For we know from the letter written by the girlfriend's solicitors dated 3 November that she had by then informed them that there had been talk of an adjournment of the hearing. Is it said – and, if so, how can it be said – that, whatever be the date at which she had thus informed her solicitors, she should have done so earlier? Is it said – and, if so, how can it be said – that she should then have instructed them either to halt preparation for the hearing or, as Mr Todd today in oral submission suggests, to volunteer consent to an adjournment which was patently not in her interests? It is impossible to wring out of the few known facts any criticism of the girlfriend which should weigh against her in relation to costs. If, by contrast, the comment of the judge was to the effect that the solicitors for the girlfriend failed on her behalf to react in a reasonable manner to the growing problem presented to them and that their failure should count against her in relation to costs, then, again, I am at a loss to understand any basis of it. For

(a) There was a culpable failure on the part of the wife's solicitors to invite them on 28 October to agree to an adjournment.

(b) There was a culpable misrepresentation on their part to the Clerk of the Rules that all relevant parties agreed to the adjournment and that the re-listing could thus take place forthwith and otherwise than by judicial direction.

(c) On 3 November the girlfriend's solicitors wrote to the wife's solicitors; enquired about the rumours which had reached their ears; and indicated, in my view entirely reasonably, that the girlfriend did not agree to an adjournment and that they were delivering their brief to counsel. It was not unreasonably early for his brief to be delivered on that date, only six clear days prior to the hearing.

(d) On 4 November the wife's solicitors wrote the disingenuous letter in which they not only invited the girlfriend's solicitors to agree to an adjournment but stated that, by virtue of their letter to the Clerk of the Rules, "the matter has been adjourned". It is unknown precisely when the Clerk of the Rules effected the re-listing; but she must surely have done so by 4 November. Although there was discussion before the judge as to whether, upon prompt explanation to her of their lack of consent to the re-listing, the solicitors for the girlfriend could have persuaded the Clerk of the Rules to reinstate the original listing, my long and recent experience of listing in the Division leads me to be confident that such would have been highly unlikely.

(e) Thus, by letter dated 9 November (two clear days prior to the hearing), the girlfriend's solicitors, while stating that she "is ready for trial", clearly and reasonably accepted the inevitability of adjournment and foreshadowed Mr Willins' application for transfer to the Queen's Bench Division in order to mitigate the gross delay. In my view such was a reasonable stance for them to have adopted, notwithstanding that in the event the application failed to find judicial favour. I should add that, in his attempt to defend the judge's order in this court, Mr Todd has alighted upon the assertion in the letter dated 9 November that the girlfriend was "ready for trial" and has submitted to us that, at least on the day of the hearing, if not also on 9 November, she was clearly not ready for trial. I have no reason to doubt – despite Mr Todd's generalised submission today to the contrary – that, as at 9 November, the girlfriend had been substantially ready for trial; but I consider that by 14 November she had accepted the inevitability of adjournment and so was no longer ready for trial. There is no merit in Mr Todd's submission in this regard, which did not in any event figure in the judge's short exposition of his decision.

24. Thus, whatever be the construction properly to be placed upon it, I cannot accept that the judge's first reason for declining to award costs to the girlfriend is a factor which he was even entitled to bring into the discretionary exercise.

25. The judge's second reason for declining to award costs to the girlfriend was that she had failed in her application for transfer to the Queen's Bench Division and in her opposition to the directions for disclosure. But these were not issues the ventilation of which increased the costs; they had no causal connection with the wastage of costs; and, in particular, they were issues which grew out of the need for an adjournment precipitated by the wife's inactivity. Mr Willins had made clear that he was commending transfer as a way of mitigating the unfair delay consequent upon the adjournment. As for the directions for disclosure, they were born of a request articulated by Mr Todd in a note served only a couple of working hours prior to the hearing. Mr Todd was in effect using the adjournment necessitated by his client's inactivity in order to extract from the girlfriend disclosure which, so it seems, had not previously been considered necessary. Thus both issues were the product of the need to adjourn; and, with respect to the judge, they could not logically have figured as a second reason for depriving the girlfriend of her costs.

26. This was, in my view, a case in which, momentarily blinded by Mr Todd's submissions, as energetic and seductive as they were extravagant, the judge failed to see the wood for the trees. Just as in the case of the husband, so in the case of the girlfriend: there was no legitimate reason for depriving either of them of their costs. The wife's gross delays had precipitated an adjournment of what was then believed to be almost a year and which now transpires to be in excess of a year. In the case of the girlfriend, however, there was a further compelling reason for awarding her costs. For the wife's solicitors had made to the Clerk of the Rules the misrepresentation which had secured an adjournment of the matter without reference to the girlfriend's solicitors and thus without giving them even the opportunity to object to it. I cannot understand the judge's failure even to refer to this feature.

27. Being of the opinion that for those reasons the discretionary exercise conducted by the judge was seriously flawed and commands intervention, I would allow the appeal; set aside the order as to costs made by the judge; and make an order in lieu that the wife should pay the girlfriend's costs of the hearing on 14 November 2005 and any other costs thrown away as a result of that adjournment of the substantive hearing.

28. LORD JUSTICE NEUBERGER: My Lord, Lord Justice Wilson has set out the history of this matter and has given his reasons for allowing the appeal. There is nothing I can usefully add to what he has said. I entirely agree with his judgment. The appeal will therefore be allowed, and I would invite Mr Willins in those circumstances to make any submissions he wishes to make in relation to how we proceed from here.

Order: Appeal allowed.