AT v NB (No 2) (Maintenance Pending Suit: Costs)

This is my judgment in respect of the costs arising out of the applicant wife’s application for maintenance pending suit.

My decision in respect of the maintenance application was handed down on 4 August 2025 (AT v NB (Maintenance Pending Suit) [2025] EWFC 248 (B)). I ordered the husband to pay the sum of £1,700 per month as global maintenance for the benefit of the wife and their child, D, until final hearing, in addition to him continuing to fund various outgoings on the family home. It is disappointing that that final hearing appears even now not to have been listed – it is now nearly six months since the financial dispute resolution appointment and these parties desperately need to bring these proceedings to an end.

At the end of the hearing, both parties asked if they could address the question of costs by way of written submissions once the outcome of the main application was known, to which I agreed. Given the unusual history of this case, which only came before me 14 months after the application was made due to the initial order made in July 2024 being overturned on appeal, I asked the parties to ensure their submissions addressed two issues in particular.

First, His Honour Judge Richard Clarke determined the costs of the appeal, but remitted the question of the costs of the original hearing to be decided at this hearing. I invited the parties’ views on how I should treat the costs of this earlier hearing as part of my assessment of the costs of this application.

Second, it was clear from the evidence that both parties’ financial circumstances had changed in the period between the application being made in April 2024 and the hearing in June 2025. The prospects of securing an order for maintenance pending suit are not tied to the facts at the time the application is made, but will ambulate over time with the parties’ changing fortunes. In particular, it was possible that developments in the 12 months between the two hearings could have rendered one parties’ previously unreasonable position reasonable, and equally possible that a reasonable approach to have adopted in mid-2024 had become an unreasonable position by mid-2025. I invited the parties’ views on whether, and if so how, this should be accounted for in my decision.

Rule 28.1 of the Family Procedure Rules 2010 empowers the court to make such order as to costs as it thinks just.

The general rule against costs orders being made in financial remedy proceedings is expressly disapplied by rule 28.3(4)(b)(i) in applications for maintenance pending suit. Instead, Part 44 of the Civil Procedure Rules 1998 applies, but with some rules, including rule 44.2(2), explicitly excluded.

Since the general rule in civil proceedings – that the unsuccessful party will be ordered to pay the costs of the successful party – appears at CPR 44.2(2), this means that neither general rule applies in applications for interim maintenance and the court starts with a “clean sheet”.

The surviving parts of CPR 44.2 say:

(4)

In deciding what order (if any) to make about costs, the court will have regard to all the circumstances, including –

(a)

the conduct of all the parties;

(b)

whether a party has succeeded on part of its case, even if that party has not been wholly successful; and

(c)

any admissible offer to settle made by a party which is drawn to the court’s attention, and which is not an offer to which costs consequences under Part 36 apply.

(5)

The conduct of the parties includes –

(a)

conduct before, as well as during, the proceedings and in particular the extent to which the parties followed the Practice Direction – Pre-Action Conduct or any relevant pre-action protocol;

(b)

whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;

(c)

the manner in which a party has pursued or defended its case or a particular allegation or issue; and

(d)

whether a claimant who has succeeded in the claim, in whole or in part, exaggerated its claim.

The fact that CPR 44.2(2) is disapplied does not mean that ‘success’ is irrelevant to the exercise of discretion in ‘clean sheet’ cases (indeed it still features at CPR 44(4)(b)) and the approach of the courts in these cases was described by Mostyn J in LM v DM [2021] EWFC 28 as a “soft costs-follow-the-event principle”.

The question of what constitutes success has been explored in many cases at the highest level. As was said by Longmore LJ in A L Barnes Ltd v Time Talk (UK) Ltd [2003] EWCA Civ 402:

“In deciding who is the successful party the most important thing is to identify the party who is to pay money to the other. That is the surest indicator of success and failure.”

This remains the case even where the amount ordered falls significantly short of the amount the applicant has sought, on the basis that they were still forced to bring proceedings in order to recover even the (smaller) amount awarded (see Fox v Foundation Piling Ltd [2011] EWCA Civ 790). That the applicant fell a long way short of what they asked for is not, for this purpose, a reason not to identify their award as a success. It may well be, however, something to factor into the decision about how much of their costs should be awarded, and something that the respondent can (or should) guard against with a well-pitched settlement proposal (Global Energy Horizons Corpn v Gray [2021] EWCA Civ 123).

It is a significant factor therefore, at the top of my clean sheet, that by this definition it is the wife who has been successful in this application, albeit that she has only secured £734 per month (after accounting for child maintenance) of the £4,000 per month that she was seeking.

Both parties invite me to look at the costs of the July 2024 hearing in isolation from the application as a whole.

The wife gives two reasons for why she says her costs for the original hearing should be awarded in full irrespective of my decision on the application as a whole:

I do not accept that either of these is a reason to carve out the costs associated with the first hearing and award them in full to the wife. In respect of the husband’s late witness statement, the reality is that the wife made the decision at the time to press on with the hearing, which did then go ahead. I will consider the parties’ compliance with court orders as part of my overall assessment of the case, but I do not see that it justifies punishing the husband to the tune of the entire costs of hearing that was not, in fact, rendered ineffective.

In relation to the second point, the judgment given was set aside on appeal. I cannot see how I can therefore rely on any aspect of it to adjudge success at that hearing. The whole thrust of HHJ Clarke’s judgment was that insufficient reasons were provided for him, and in turn me, to know whether that outcome was properly reached or not.

The husband also invites me to treat the costs of the first hearing separately, and invites me to order the wife to pay his costs of the original hearing. I have struggled to understand his logic for this, which appears to be intimately tied to his costs arguments in relation to the appeal (which, of course, have already been determined). Disentangling the arguments from those relating to the appeal and the second hearing, his point seems to be that the wife ultimately came away from the first hearing without an order, and so was unsuccessful at that hearing.

I should add that while both parties have invited me to address the costs of the first hearing separately, neither has provided me with a figure said to represent the cost of the hearing itself. Both refer to their original July 2024 costs schedules, which of course include all manner of costs that should rightly be considered as part of the application as a whole, such the preparation of the application paperwork and their respective witness statements.

In any event, nothing I have heard has persuaded me that I should treat the costs of the first hearing separately from the costs of the application as a whole. Sometimes in litigation events arise that, while not avoidable, are not unforeseeable and which can add to the overall cost of litigating. A hearing being vacated by the court at short notice is just one example. A poorly reasoned decision that is overturned on appeal must be another. I do not consider that the associated costs should be carved out and assessed separately from the application as a whole. Of course, when I come to consider whether the overall costs are proportionate and reasonably incurred it will be a relevant factor that the parties had to prepare and pay for two hearings rather than the usual one.

During the course of the litigation the wife’s rental income increased, potentially reducing the amount of maintenance she needed from the husband. The husband’s rental income also increased, increasing the amount he could afford to pay. Perhaps most significantly, shortly before the final hearing D left private education, freeing up £1,700 per month that was then available to the husband to use to pay maintenance.

As a result, over time the strength of the wife’s claim for maintenance has fluctuated. Is that something I need to account for when considering costs? Despite being invited to do so, neither party chose to grapple with this question. On reflection, perhaps they were right not to do so. The court has little enough time as it is to determine the right level of maintenance on the facts as they are at the time of the hearing. It would be disproportionate, and perhaps a fool’s errand, to try to determine what order would or should have been made at some other, earlier, point in time.

I therefore confine myself to the bare facts that the wife sought £4,000 per month, the husband offered nothing, and I ultimately ordered a global figure of £1,700 (which is equivalent £734 now that the child maintenance element has been confirmed as £966).

For the reasons set out above, the wife has been successful in her claim, albeit that she has only received an order for less than 20% of what she claimed.

Despite this being an application for which “Calderbank” offers can be considered, it appears that both parties set out their stalls (at £4,000 and £0) at the very outset of this application in April 2024 and neither made any movement from that position in the subsequent 14 months, notwithstanding the many and various changes in both their financial situations during the intervening period.

I consider that this is relevant to the third limb of CPR 44.2(4) – conduct – particularly in light of what is said at paragraph 4.4 of Practice Direction 28A to the Family Procedure Rules 2010 that:

“The court will take a broad view of conduct for the purposes of this rule and will generally conclude that to refuse openly to negotiate reasonably and responsibly will amount to conduct in respect of which the court will consider making an order for costs.”

Although this paragraph strictly relates to conduct under FPR 28.3(6) and (7), I consider that the sentiment must apply equally, if not more so, in a clean sheet case where there is no presumption against costs order and where Calderbank offers, as well as open offers, are available for inspection by the court on the question of costs. I observe that Mostyn J formed a similar view in LM v DM(at [1]).

I have made a substantive order. I accept, despite the husband’s arguments to the contrary, that the wife’s application was both reasonable and “manifestly required”.

To some extent, however, the wife shares responsibility with husband that the matter has come all the way to this contested hearing. I do not need to decide what order would have been made at any particular point in time to know that she was never going to receive the £4,000 per month that she sought at the outset and has doggedly stuck to ever since – at its absolutely highest the wife’s income and expenditure schedule put her alleged monthly shortfall at £3,902 and that was on the basis on an asserted net salary of £2,173 per month that, as I observed at paragraph 25 of my original judgment, was not supported by the P60 and payslips exhibited to her Form E (which revealed a net income of £42,115 pa, which equates to £3,509 per month).

In LM v DM, Mostyn J said as follows:

2.

The result of the case was clearly a win for the applicant. Although she did not achieve as much in quantum as she sought, the result was much closer to her position that the respondent's. She also succeeded on issues of principle which divided the parties. I agree that there were aspects of the respondent's case which were unreasonable and which reinforce my starting point that the applicant should be awarded her standard costs of the application.

3.

However, I agree that the applicant made no serious attempt to negotiate openly and reasonably beyond setting out her in-court forensic position in her witness statements. My impression was that the applicant was determined to fight the application come what may.

4.

Litigants must learn that they will suffer a cost penalty if they do not negotiate openly and reasonably.

5.

Accordingly, the applicant will be deprived of 50% of the award which I would otherwise have made in her favour.

For the same reasons (and bearing in mind this wife fell somewhat further short of the amount she claimed and also the husband’s failures to comply with court deadlines) I consider that the just outcome in this case would also be for me to award the wife 50% of her costs which, for the reasons set out at paragraphs 14 to 20 above, includes her costs relating to the original hearing in July 2024.

The wife’s costs up to and including the original hearing are said to be £10,642.80. For the period following the appeal hearing up to this hearing she reports a further £13,005. I am asked to assess these costs summarily. The standard basis for costs assessment requires me to assess whether those costs were both reasonably incurred and proportionate to the matters in issue. Having reviewed both N260 statements of cost, I find little to object to in the first. In relation to the second, I struggle principally to understand in particular the need for 7 hours of “personal attendances on others” at partner level. Deducting this, and making other only minor trims to the reported costs I summarily assess the wife’s costs in the sum of £19,000. I therefore order the husband to pay 50% of that, being £9,500.