Mr Justice Clarke proposed that Mr. D. pay Ms. D. 40% of specified costs from the High Court proceedings, replacing an order that he pay 80%. In a separate allocation of appeal costs, Clarke J. proposed that Ms. D. receive the costs of the substantive appeal and Mr. D. receive the costs attributable to a separate second day of hearings on costs, with the amounts set off. The net position was to be taxed if the parties could not agree.
The Supreme Court judgment, delivered on 23 July 2015, addressed costs following an earlier appeal in judicial separation proceedings. Clarke J. said the ordinary starting point in matrimonial cases involving a broadly equal division of resources should be that each party bears their own costs, because litigation expenses reduce the resources available for provision. He also said a court could depart from that approach where a party’s unmeritorious conduct significantly increased the other party’s costs.
The High Court had awarded Ms. D. 80% of the costs of a relevant hearing and certain interlocutory costs. Clarke J. considered that the trial judge had been entitled to find that both parties had raised unmeritorious issues that made the proceedings more complex and expensive. He did not consider the trial judge’s estimate that 20% of costs related to issues raised unsuccessfully by Ms. D. to be clearly and significantly wrong.
Clarke J. proposed dividing the High Court costs into three broad categories: 20% for issues that would have arisen in any event, 20% attributable to Ms. D.’s unmeritorious issues, and 60% attributable to issues on which she succeeded after unmeritorious positions or improper conduct by Mr. D. He proposed that each party bear their own costs for the first category, that Mr. D. recover 20% of his costs for the second, and that Ms. D. recover 60% of hers for the third. After setting those amounts off, he proposed an order for Ms. D. to recover 40% of the relevant High Court costs.
On the appeal, Mr. D. had initiated the challenge and had substantially failed on the substantive appeal, Clarke J. said. Ms. D. was therefore to receive the costs of that appeal in full. But Mr. D. had succeeded on the costs issue, which had occupied a separate second day, so Clarke J. proposed awarding him the costs of that day and setting them off against Ms. D.’s appeal costs.
These are Clarke J.’s conclusions and proposed orders in his judgment. The source does not include the final Supreme Court order or the disposition of the other judge’s separate judgment.