The High Court awarded the respondent party and party costs after the petitioner withdrew a nullity petition concerning the parties’ marriage. It declined her request for the higher solicitor and client costs, finding that the petitioner had not pursued the claim far enough at an oral hearing to justify that sanction.
The judgment, delivered by Mr Justice Henry Abbott on 13 July 2012, concerns a costs application following the withdrawal of the nullity petition. The respondent had started judicial separation proceedings. The petitioner then sought a stay of those proceedings while his nullity petition was decided. The stay was granted despite the respondent’s opposition.
The nullity claim relied on allegations about the petitioner’s capacity to marry, the parties’ relationship and whether the marriage had been consummated. The respondent denied and disputed those allegations. After a court-appointed medical expert examined the parties, the petition was called for hearing on 21 March 2011. The petitioner’s senior counsel then told the court that, after reviewing the expert’s report with his client, the petitioner would withdraw the petition.
The respondent sought solicitor and client costs, arguing that the nullity proceedings and stay application had unjustifiably interfered with the separation case and had caused serious harm to her. The judge considered affidavits already before the court and ruled that the respondent did not need to give oral evidence on the costs application.
The judge found that the petitioner’s expert had been misled by incorrect statements, including that there had been only one wedding ceremony and no sexual intercourse or real cohabitation after the wedding. The court also found that the nullity proceedings and stay application began when financial disclosure in the separation proceedings had reached a challenging stage for the petitioner. It concluded there had been no reasonable chance of success on the nullity petition, given the information supplied to the expert and the findings of the court-appointed examiner.
However, the judge said the petitioner withdrew before pursuing the claim to any significant extent in an oral hearing. That meant the conduct did not cross the threshold for solicitor and client costs, taking account of the courts’ policy of encouraging settlement and withdrawal of unmeritorious claims. The respondent was awarded party and party costs, including any reserved or discovery costs, with the amount to be taxed if the parties could not agree.