Date of Case: 30 July 2021
Case Reference: [2021] EWCA Civ 1184

Sarah Phipps acted for the wife in this Court of Appeal case about the treatment of costs in ‘needs’ cases.

The judgment at first instance provided the husband with sufficient funds to purchase a small property and to pay most of his legal costs. Two appeals followed. In the first appeal, the wife argued that the husband should not have been awarded anything at all and should have paid his own costs. That appeal was allowed, and the payment for the husband’s costs was substituted with a charge for the same sum, secured on the property he was due to purchase. 

In this second appeal before the Court of Appeal, the husband appealed against the charge on the property.  King LJ’s judgment set out that where an order substantially in excess of the sum required to meet a party’s needs is sought in order to meet legal costs, the court should: 

1. consider whether in any event the case was one in which an order for costs under FPR 28(6) and (7) in particular by reference to FPR PD 28 para 4.4 should be made; and
2. have firmly in mind what the order they proposed to make by way of additional lump sum to meet a party’s costs would represent if expressed in terms of an order for costs. This would act as a cross check of the fairness of the proposed order.

King LJ’s view was that the order originally made by the judge, allowing for a clean break and for the husband’s costs to be paid, was not outside his discretion such that it was appropriate for his order to be altered on appeal. Moylan LJ and Newey LJ agreed. The second appeal by the husband against the judge’s order imposing a charge on his property was allowed.

Bailii report: https://www.bailii.org/ew/cases/EWCA/Civ/2021/1184.html