The High Court has ruled that each party must bear their own costs in motions concerning a consent order that required a husband to make financial payments to his wife.
Mr Justice Binchy delivered the costs ruling on 15 May 2018, after hearing submissions on 27 April. The motions arose from the husband’s failure to make payments required by an order made by consent on 17 January 2011.
In a judgment delivered on 12 March 2018, the judge concluded, after a lengthy examination of the parties’ assets, liabilities and earning capacity, that the husband did not have the means to meet the order’s capital obligations. He relieved the husband of further capital payments and curtailed his maintenance obligations to the wife from 12 months after that judgment. The costs ruling addressed who should pay the costs of the motions; it did not revisit those substantive orders.
The wife had first sought attachment and committal over what her motion described as the husband’s “wilful failure” to comply. She later withdrew that motion, with leave to bring a replacement seeking judgment for the sums due. The replacement motion was unsuccessful. The husband’s motion to vary the consent order succeeded.
His counsel argued that costs should follow that result, pointing to the withdrawn allegations, the length of the proceedings and maintenance payments the husband had made while the motions were pending. The wife’s counsel relied on an open settlement letter and argued that conditions she had proposed were substantially reflected in the principal judgment. Her counsel also said the hearing had properly examined the family home, a possible trust arrangement and the husband’s financial affairs.
The judge said the wife’s withdrawal of an allegation that the husband had caused an information deficit in financial disclosure followed her discovery that her advisers had received a bank facility letter. He described the allegation as unfortunate and said it caused the husband distress, but found it had been made on the basis of an error. He said a later proposal to Bank A, showing a net worth of €18,421,000, compared with an affidavit of means sworn weeks earlier showing a negative net worth of €13,546,242, contributed to the wife’s impression that there had been a disclosure deficit.
The judge said the husband’s failure to meet the consent order was the principal reason both parties brought motions. The wife was entitled to test his claim that he could not pay, given the sums at stake. While she should receive an order for costs in principle, the judge took account of the husband’s precarious financial position and her reasonable offer that each party bear their own costs. He ordered each party to bear their own costs associated with the applications.