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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Baker v Rowe  EWCA Civ 1162 (06 November 2009)
Cite as:  1 FLR 761,  EWCA Civ 1162,  1 FCR 413,  Fam Law 17,  2 Costs LR 175
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ON APPEAL FROM THE TRURO COUNTY COURT
HIS HONOUR JUDGE VINCENT
LOWER COURT NO: TR08D00171
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE WILSON
LORD JUSTICE LEVESON
| WILLIAM BAKER
|- and -
|PAULINE JESSIE ROWE
Miss Daisy Brown (instructed by Coodes, St Austell) appeared for the Respondent.
Hearing date: 20 October 2009
Crown Copyright ©
Lord Justice Wilson:
(a) the circuit judge's statement that the son-in-law needed permission to appeal to him;
(b) the circuit judge's observation that, had he considered the issue of permission to appeal as a discrete matter, he would have granted it; and
(c) the circuit judge's orders, both as announced at the end of his judgment and as drawn, to the effect not only that the appeal should be dismissed but also that the application for permission to appeal to him should be refused.
(a) the claims of the daughter and the son-in-law before the district judge were made under the Trusts of Land and Appointment of Trustees Act 1996 ("TOLATA");
(b) claims under TOLATA are not family proceedings but, instead, are assigned to the Chancery Division under s.61(1) of, and Schedule 1 to, the Supreme Court Act 1981;
(c) had the issue between the daughter and the son-in-law proceeded in the High Court, rather than the county court, it would have been assigned to the Chancery Division; and
(d) insofar as at the hearing in November 2008 the district judge was also, albeit quickly and by consent, making a conclusive determination of the wife's claim for ancillary relief against the husband, the proceedings before him were partly family proceedings and partly non-family proceedings.
"The general rule in ancillary relief proceedings is that the court will not make an order requiring one party to pay the costs of another party "
In the event, having raised the question, the district judge expressed himself satisfied that the general rule did not apply to the issue of costs between the daughter and the son-in-law; nor had counsel then appearing for the son-in-law suggested that it did apply. In those circumstances the district judge proceeded to make an order for costs in favour of the daughter against the son-in-law.
" [Before the judge] Mr Turner [on behalf of the wife] invoked Rule 2.71(4)(a) of the Family Proceedings Rules 1991, which provides that "the general rule in ancillary relief proceedings is that the court will not make an order requiring one party to pay the costs of another party". Mr Seabrook [on behalf of the husband], on the other hand, invoked Rule 44.3(2)(a) of the Civil Procedure Rules 1998, which provides that "the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party". Counsel's invocations could not both be valid. So which was valid? Or was neither valid?
 In my view the judge was right to reject Mr Turner's argument. Rule 2.71(4) of the Rules of 1991 applies to "ancillary relief proceedings". Of course, as Mr Turner stresses, the wife's aspiration, following any setting aside of the orders made in 2001, was again to proceed with her application for ancillary relief. But her application for an order setting those orders aside was not itself an application for ancillary relief, as defined in Rule 1.2(1) of the Rules of 1991. So, although the proceedings before the judge were in connection with ancillary relief, they were not for ancillary relief. I would have been willing to give the phrase "ancillary relief proceedings" in Rule 2.71(4) a wide, purposive construction so as to include proceedings in connection with ancillary relief as well as for ancillary relief if my view had been that such would better reflect the rule-makers' purpose. But such is not my view. The general rule in Rule 2.71(4)(a) is only a concomitant of the modern approach in applications for ancillary relief that the sum owed by each party in respect of his own costs will be treated as his liability for the purposes of calculating the substantive award.
 The judge considered that, if Mr Turner was wrong, it followed that Mr Seabrook was right. With respect, I do not agree. Rule 10.27(1)(b) of the Rules of 1991 provides that Rule 44.3(2) of the Rules of 1998 shall not apply to "family proceedings". Contrary to the submissions of Mr Seabrook, I have no doubt that, although they were not "ancillary relief proceedings", the proceedings before the judge were "family proceedings" within the meaning of Rule 1.2(1) of the Rules of 1991 and of s.32 of the Matrimonial and Family Proceedings Act 1984 in that they constituted a matrimonial matter within the meaning of paragraph 3(a) of Schedule 1 to the Supreme Court Act 1981.
 Thus there was no "general rule" in either direction for the judge to apply to his decision. He had before him a clean sheet; but by reference to the facts of the case, and in particular, the wife's responsibility for the generation of the costs of a failed application, he remained perfectly entitled to record upon it, as he did, that he would start from the position that the husband was entitled to his costs.
 The judge moved from that position for two reasons "
"The first is the destabilising effect that costs can have on financial settlements that have been carefully constructed by the court. Having considered the facts and circumstances of a case the court arrives at a settlement that, in its judgment, does justice between the parties. At the conclusion of some cases it is revealed to the court that one party has failed to 'beat' a Calderbank offer. A Calderbank offer is a written offer from one party to the other to settle all matters in dispute on a "without prejudice except as to costs" basis. The consequences of failing to exceed a Calderbank offer can undermine completely the substantive order for ancillary relief that the court has just made."
Later, in paragraph 27, the department stated:
"The purpose of applying a 'no order for costs' principle in ancillary relief proceedings is to stress to the parties, and to their legal advisers, that running up costs in litigation will serve only to reduce the resources that the parties will have left to support them in their new lives apart. The proposed amendments to the costs rules are designed to establish the principle that, in the absence of litigation misconduct, the normal approach of the court to costs in ancillary relief proceedings should be to treat them as part of the parties' reasonable financial needs and liabilities. Costs will have to be paid from the matrimonial 'pot' and the court will then divide the remainder between the parties."
Lord Justice Leveson:
Lord Justice Ward:
"In the Truro County Court
The marriage of Jessie Wood and Bertie Leonard Wood
Before District Judge Mitchell sitting at Truro County Court
Upon hearing the solicitors for the applicant and respondent and counsel for the first and second interveners
IT IS ORDERED THAT
1. By consent of Mr Bertie Wood and Mrs Jessie Wood Mr and Mrs Wood shall convey the legal interest in the property 3 Marlborough Grove, Falmouth to Mrs Pauline Rowe
2. It is declared that Mrs Pauline Rowe is the sole beneficial owner of 3 Marlborough Grove, Falmouth, subject to Mr Wood's right of occupation as set out in previous orders.
3. Mr William Baker's application for a declaration that he has an interest in 3 Marlborough Grove is refused.
4. Mr and Mrs Wood's claims for financial provision pension sharing and property adjustment do stand dismissed "