The High Court deferred a decision on costs after a wife discontinued earlier judicial separation proceedings. Mr Justice Henry Abbott reserved the respondent husband’s costs application until the determination of the judicial separation proceedings then before the court.
The application was heard on 26 October 2012. The judgment, delivered on 13 December 2013, records that the discontinued case included a dispute over computer and USB material. The wife said the material supported a “fault” allegation; the husband maintained it did not relate to him. The judge said there was not enough evidence to decide the IT issue on its merits.
The husband’s counsel argued that the Rules of the Superior Courts required costs to be paid following discontinuance. The wife’s counsel relied on authority that discontinuance does not necessarily amount to defeat when an issue has become academic, and asked the court to adjourn the costs question until the newer separation proceedings concluded. He did not argue that costs could never be awarded.
The judge said it was unnecessary to decide whether the costs rule was mandatory in this case. Reserving the issue would leave the arguments open for later. He also cited the risk that an early costs order in separation proceedings could heighten tensions, harm settlement prospects and affect children, and could impede a party’s ability to raise funds for the proceedings. If costs were considered on a discretionary basis, he said, the parties’ financial positions would be better assessed after the current separation case was decided.
The formal order reserved the costs issue. The judge made no ruling on whether the husband was entitled to costs, whether the disputed IT material was authentic, or the merits of either separation case. He also expressly left any costs decision in the Supreme Court to that court.
The judgment records that an appeal concerning the discontinued proceedings remained before the Supreme Court. The judge directed the wife’s counsel to inform that court promptly that the underlying proceedings had been discontinued, and expressed no view on what the Supreme Court might do about costs.
The appended procedural note says that in November 2011 the judge refused to hear preliminary issues first in the separation case, after concluding that proceeding that way could harm the children. He directed the parties to exchange affidavits of means and welfare and said he would arrange an early full hearing.