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N v N (Costs) [2011] EWCA Civ 979

The husband had successfully appealed against an order extending the term of the periodical payments payable to his former wife. He went on to seek an order for costs.

Following on from the Husband's successful appeal in N v N, the Husband sought an order for costs.  The Court of Appeal made no order.

Thorpe LJ stated that while the Husband had been successful on appeal, looking at the order in the court below where he had failed and there was no order as to costs, taking into account their respective financial circumstances and the interests of the children, then the order would be no order as to costs.

During the costs judgment, Thorpe LJ highlighted the Part 36 letter that had included a rider to the offer that were the offer to be accepted then the Wife would be liable for all of the Husband's costs and stated that it therefore invalidated the proposal to settle.  In addition, Stanley Burnton LJ stated that the lack of a schedule of costs disabled the court from properly considering quantum in any event and was a further reason why no order for costs should be made.

Summary by Richard Tambling,  barrister, 1 Garden Court


Neutral Citation Number: [2011] EWCA Civ 979
Case No: B4 / 2010 / 1449
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday 30th June 2011


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(DAR Transcript of
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Mr Michael Glaser and Mr Byron James (instructed by Gans and Co) appeared on behalf of the Appellant.

The Respondent appeared in person.
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Approved Costs Judgment

Crown Copyright ©
Lord Justice Thorpe:

1. I deal first with the points that Ms N raises on her respondent's notice. She informs us that she sought to file a respondent's notice and indeed included it in her bundle at page A10, but she was directed by the office that it could not be accepted for filing since there was only an application for permission listed for disposal today and that a respondent's notice could only be accepted for filing after the grant of permission to appeal. 

2. There is no doubt that this unfortunate saga has its origins in the order drawn to reflect my judgment of 11 March.  The order should have said by its first paragraph that the application be adjourned on notice with appeal to follow if permission granted.  Unfortunately it said only the application be adjourned on notice; so subsequent communication between Ms N and the office led the office to mislead, on perhaps more than one occasion and to refuse the acceptance of her respondent's notice in reliance on the order without reference to the transcript itself.  So truth was to be found in the transcript; the order itself is misleading and the error is compounded by court staff subsequently relying on the order without knowing the content of the transcript.

3. So that is all regrettable, and apology is due to Ms N for any misleading communication which she has received from the office.  However, she was not in any doubt as to the ambit of this hearing because she did have the transcript of 11 March which tells the whole reliable story.  We know she had it because she has included that transcript within her respondent's bundle, and furthermore we have been shown a letter from the appellant's solicitors of 31 March, which at the top of page 2 says:

"The hearing listed on 30 June is for permission to appeal if the permission is granted, then the substantive hearing will follow. Please can you send us as a matter of urgency any appeal notice upon which you seek to rely if the matter proceeds to substantive hearing."

4. It may be that there is some ambiguity within that letter, since it does not clarify the immediacy of the substantive hearing, but all this is put to rest by the respondent's notice, which would have been accepted for filing had the office not misunderstood the nature of today's hearing.  We have seen the draft notice and it accords with the summary contained in the note written by Mr Glaser on 27 June.  Section 5 of the respondent's notice (the intended notice) makes it plain that the orders that Ms N sought to challenge by the respondent's notice were the orders of District Judge Trigg of 26 May 2005 and the order of District Judge Raeside of 25 February 2010.  Thus the respondent's notice did not go to any issue upon the judgment of HHJ Rylance, which is the only judgment that we have today reviewed.

5. Accordingly, it seems to me that there is no more that need be said upon the respondent's notice.

6. I turn now to the question of costs.  The application for costs is advanced by the successful appellant.  He not only relies upon his success here, but he relies upon what I would call a Calderbank letter, probably dispatched in September 2010, which seeks to conclude the proceedings on an offer to extend the term of the periodical payments order for a further four years.  Seemingly that reasonable proposal was not accepted.  However, it is only the prelude to a second letter of the 31 May which purports to be a settlement proposal under the provisions of Part 36.10 of the Civil Procedure Rules. Having set out the offer in similar if not identical terms to that advanced in September, the letter proceeds, bizarrely to my eyes, in these terms:

"This offer is intended to have the consequences of Part 36. If the offer is accepted by 4pm 23 June 2011 you will be liable for all of our costs in accordance with Rule 36.10 of the Civil Procedure Rules."

7. That seems to me to be a startling rider to the settlement offer.  I well understand the following paragraph which sets out the consequences of refusal of the offer, but to set a term that acceptance of the offer would require the offeree to pay all the offeror's costs seems to me to invalidate the proposal.  So I would not rest any judgment in relation to costs on either the September letter, because it is overtaken by the letter of 31 May, nor by that later letter, because it contains a rider that was plainly inconsistent with an offer to settle.

8. So, coming back to general principle, yes, the appellant has succeeded, but the order in the court below where he failed was no order and that seems to me to be a wise provision.  Given their respective financial circumstances, given the interests of the children, I would simply say no order as to costs in this court as in the court below, and that disposes of the two subsidiary matters that have been advanced this afternoon.

Lord Justice Longmore:
9. I agree.

Lord Justice Stanley Burnton:
10. I also agree and add that the failure of the appellant to provide a schedule of costs, which has disabled the court from considering properly the quantum costs in any event, is a further reason why I would make no order.

Order:  Application granted; appeal allowed