Mark v Mark

J U D G M E N T

Thursday, 19 February 2004

1. LORD JUSTICE THORPE: This is Mr Howard's appeal, apparently with permission given in November 2003, against the costs order made by Hughes J on 16 October 2002 in relation to his dismissal of the husband's application for a stay of the divorce proceedings and the husband's contention that the court had no jurisdiction to entertain the suit.

2. Hughes J had very full argument on the issue of costs. Mr Charles Howard QC had put in a full skeleton running from page 352-370 in the bundle and counsel for the wife had responded with a skeleton which opens at page 371. The judge had ordained a subsequent hearing on the costs issue, his second judgment having been handed down in August. That hearing took place on 16 October and the judge gave a comparatively sophisticated and detailed ruling on the rival submissions. He said first and foremost that the wife had succeeded on both issues and that the ordinary and normal rule was that costs follow the event. However, he said that that normal rule should be qualified to reflect three aspects. The first was that the wife had failed on what the parties had designated as the polygamy issue. Accordingly, the judge ruled that not only should she not recover her costs on that issue, but she should pay the husband's costs, the judge directing that he should have a set-off in respect of his costs on that issue. Second, he said that the husband should have a set-off in respect of his wasted costs arising from a full day of unnecessary hearing on 4 March brought about by the wife's belated presentation of a number of applications which should have been brought forward earlier. Third, the judge said that the husband should have a set-off in respect of costs incurred in considering and preparing to respond to the evidence of a witness instructed by the wife, a Chief Ladopa, who in the end she had not relied on.

3. The attack that Mr Howard makes on the judge's discretionary determination is that it was plainly wrong because, he says, it simply was not enough to give the husband set-off in those specific instances when in reality the case had been all about the wife's lawful presence in this jurisdiction hopelessly asserted by her. Further, very substantial costs had been incurred as a result of the wife's belated unsuccessful reliance - hopeless reliance says Mr Howard - on the husband's domicile and also on the husband's residence within this jurisdiction.

4. Those were very much the submissions made by Mr Howard in the court below. The judge was infinitely better placed to make a discretionary assessment of what was fair than we are, and I do not regard Mr Howard's suggestion that the judge was plainly wrong to have any realistic foundation.

5. Similarly, in relation to a stay, I am unimpressed with the suggestion that the judge failed to reflect in his order the fact that, as Mr Howard would have it, the wife had shifted her grounds so radically that all the costs incurred prior to the date of shift should have been ordered to his client. The judge dealt with this quite specifically. At page 6 of his costs judgment he considered that submission. He rejected it. He was fully entitled so to do. Once again I cannot see that the attack on the judge's discretion has any foundation. He was ideally placed to make the assessment. He made it, and for my part I would not dream of interfering with it.

6. LORD JUSTICE WALLER: I agree.

7. LORD JUSTICE LATHAM: I also agree.

(Application in relation to costs refused; application for permission to appeal to the House of Lords refused).