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.
“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.