A husband who successfully appealed against a financial settlement with his ex-wife has now been awarded his legal costs.
In H v W (Costs), a district judge had awarded the man’s ex-wife maintenance as well as 25 per cent of his annual employment bonus as part of the couple’s financial settlement. Both awards were given on a ‘joint lives’ basis – ie until one party dies or remarries, or a further court order is issued.
The husband appealed and was granted permission in relation to the bonus award. In a June 2013 judgement, Mr Justice Mostyn had declared that:
“The learned District Judge erred and was plainly wrong in awarding the wife 25% of all the husband’s net bonuses on a joint lives basis.’
In addition, the judge had directed the parties towards mediation to try and resolve the dispute amicably. The husband agreed to pay the costs of the mediation session. But the couple could not agree on a mediator to conduct the session. The wife then unsuccessfully applied for a legal costs order, which would oblige the husband to pay her costs.
As High Court Judge Mrs Justice Eleanor King explained, however:
“On 30 October 2013 Mostyn J refused her application, saying in his ruling that the W had been unreasonable in her approach to the mediation; first in her insistence on using a top-drawer and top-price mediator and secondly that her insistence on attendance of legal representatives at mediation was neither necessary nor reasonable; in my experience this would be unusual and arguably unhelpful.”
The judge again urged the couple to attempt mediation but they did not do so and the husband’s appeal went to a fully contested hearing. The husband’s appeal was allowed, with the judge setting a cap on the amount to be paid from the husband’s bonus.
However, the couple had run up considerable legal costs – the husband £22,320 and the wife £25,372.
The wife was warned that she faced a costs order (an order requiring her to pay her husband’s legal costs) as a result of her inflexible and ‘unreasonable’ approach to mediation. The judge duly granted this, refuting the arguments of the wife’s solicitor that the husband had shown an unwillingness to compromise.
She declared:
“I share the view of Mostyn J that [the wife] was unreasonable in relation to the costs of mediation and that for her to expect the husband to pay…to have legal representation at the mediation as well as … for the mediator was unreasonable. I am puzzled as to how the husband’s refusal to pay…over and above the quotation that he had…for an experienced solicitor mediator can properly be argued as being hardly suggestive of a desire to compromise.”
This case clearly shows the importance of being willing to agree to mediation or other forms of alternative dispute resolution before a hearing. If you’re asked to go and there’s no valid reason not to, then go!
It is important to note, however, that it is your right to have a solicitor present at a mediation session if you wish. It could help. But the court may decide not to include that in any costs order made. Although it is rare for the court to make a costs order unless the judge takes the view that one side or the other has been thoroughly unreasonable, uncooperative and intransigent.
Read the judgement here.
This should not be news. Unreasonable conduct should lead to an award of costs as a matter of course. And Calderbank should be brought back.
The wife was not unreasonable to want the best mediator and want her solicitor there, if, like my daughter, she had suffered years of emotional abuse. My daughter needs an experienced mediator and her solicitor present, because when her spouse starts in with his catalogue of criticisms of all her imagined shortcomings, she cannot think straight: her mind goes blank. He therefore ends up dictating the terms and getting his way.
If the judge believes your daughter’s emotional abuse card he/she will not allow mediation. However, being of strong character and putting forward an articulate, convincing argument does not amount to abuse. If your daughter can’t think straight she is allowed a solicitor.
Thinking “does not amount to” should be “should not amount to”.
Do you disbelieve the PP’s daughter’s claims of EA, Stitchedup? I don’t see the relevance of the daughter’s experience to the case in hand, but what possible reason could you have for doubting her?
EA is a very loose concept. There are some people who do indeed regard being articulate and clear-minded as a form of abuse.
“The wife was not unreasonable to want the best mediator and want her solicitor there, if, like my daughter, she had suffered years of emotional abuse. ”
Obviously the judge who heard the case thought otherwise and was right to award the husband his costs. Greed is greed and waste is waste whichever party is to blame.
Dear madam, my e -husband has recive his docoment via land risistry which I receive a copy of which he has 40% after the sale of the house and mine is 60%. on two trigger points of change I remarry or our son the last servicing child as there is a sister, the children are 18yrs & 16yrs daughter in her second year ALevel our youngest 16yrs in six formjust started, the house was bought for £85,500. Which is now worth £385,400. The settlement of the divorce was in 2008.if I could buy him out soon I wonder if I would of been better of, because he took me to the family court first avenue high Holborn last november due the the mortgage being in arrears which I had and have had a agreement for for many years, which was in the sum of £3,400. I have slowly manage to bring down now to £735.
I have receive maintenance in the past during 2006/7. Which was £624 but that ending. During 2009 I was receiving c.s.a payments but it wasnt amount you could live on with growing children who need and should be cared for regardsless of parents parting. The payments were offten but I worked hard to keep paying mortgage and council tax that was in great arrears, these outstanding arrears build up when our divorce was finial, ive always paid the mortgage fuel bills, childcare needs ie school dinners
Gym club but it been a real hard snuggle and with the up keep needed to the home im unable to do what needed due to lack of funds from my wages to meet the house hold needs, I worry about alot to do with our home, I dont have family here just my four children althoug my two oldest have there own homesprinting the we manage by the hep of ny oldest children, but there are faults with the electricity and im told that can be a expensive job as the property needs rewindering, my income is £1,500 per month I worry for the fact of the colder months to come will once again be costly to heat the home and the hot water also. My problem is worrying because this order recently sent to me is stateing I pay the interest of the property once sold that I give consent for my ex-husbands name be transfer his nameand entilement of property to his benifit in full, which is to put a restiction on asset, along with charge over asset as guarantee that payments are made to the lender
I have I belive to make all payments on liabilitiess and money owed, additional I have subtantial investment in the property gas replacement boiler tiling, carpets, but its ufair that in july 2008 the district judge ruling seems to apply that the entitlement will be 40% on the of dipossal of asset
Please could you advice me on what I can do practically to contest this resolution to get a fairer balance and out come.
I feel a signifcant point is my ex-husband makes financial contribution to cost or maintenance which has for a long time put me at a disadvantage for our children. Please any advice for us.
Kind regards. Cass
Dear Cass
If your husband was ordered to contribute towards the outgoings or to pay you maintenance pending sale then there is something you can do. I havent seen the court order and it might be worth getting a lawyer to check it and advise you. Alternatively and as well you could try to increase child support payments for the children who are still in full time education because those payments should go up in line with the cost of living at least.
This kind of order is always a tough order to deal with, because it causes terrible resentment the longer it drags on and the more you have to pay out. I agree its all very unfair but Mesher Orders are meant to provide a roof over everyones head until the children are grown up and then to share the money. If you can afford to buy him out sooner rather than later then I would seriously think about doing it.
Regards
Marilyn
Payments for children in full-time education should go up kin line with the cost of living?
Only if the payer’s income has kept pace.
If not, not, just as if the family were still together.