A v A

Mr Justice Munby :

181. On 29 January 2007 I handed down judgment in these ancillary relief proceedings: A v A (St George Trustees Ltd and others, interveners)[2007] EWHC 99 (Fam). I take that judgment as read and use (without further explanation) the same abbreviations. Unless otherwise indicated references to paragraphs are to the paragraphs of that judgment.

182. I now give judgment on the issue of costs.

The context

183. I found the matrimonial assets to be worth a total of £2,669,715 (paragraph [163]). Even if the wife's case in relation to the ownership of HDC had succeeded – which it did not – the matrimonial assets would still have been worth only £4,290,315. It is therefore with considerable dismay, though I have to confess without any surprise, that I have to record that the costs incurred in this litigation amount to no less than £1,104,347.46 (inclusive of VAT). That is 41.36% of the matrimonial assets. Even if one strips out for this purpose the costs – £109,073.40 – incurred by the trustees, the combined costs of the wife and the husband – £995,274.06 – amount to 37.28% of the matrimonial assets.

184. Another way of illustrating the ruinous cost of this litigation is to quantify the impact on the parties of the costs they have incurred. I awarded the wife a total of £1,339,650. Her costs amount to no less than £510,531.10. So even before facing the claims being made against her by the husband and the trustees she is left with only £829,118.90 (61.89%) of her award. Were I to accede in full to the husband's and the trustees' applications, she would be left with very much less. Similar calculations could be made in relation to the impact of this litigation on the husband.

185. It will be recalled that the wife served her Form A on 10 July 2003. The trial started on 12 December 2005. I handed down judgment on 29 January 2007 (the long delay is explained in paragraphs [178]-[179]). The order was eventually finalised on 4 April 2007 though not made until 16 April 2007. The following Table shows the costs incurred by each party (i) prior to the commencement of the trial (but excluding counsel's brief fees), (ii) during the trial (including counsel's brief fees) and down to judgment, (iii) from judgment to finalisation of the order and (iv) since the order was finalised – ie., in preparing for and arguing the question of costs.

Notes:

* The husband's costs for the period until 11 December 2005 are divided into (i) £203,649.50 for the period before 22 July 2005 (see below) and (ii) £19,798.47 for the period from then until 11 December 2005

# The trustees' costs for the period from 12 December 2005 to 28 January 2007 are divided into (i) £25,624 for the period until 16 December 2005 (see below) and (ii) £40,637.26 for the period from then until 28 January 2007.

186. It will be seen that, between them, the parties managed to spend £495,555.11 before the trial, £533,072.39 during the trial, and no less than £32,978.71 in the course of squabbling over the form of the order. The additional costs incurred in arguing about the ultimate incidence of these costs come to a further £42,741.25. Thus, the grand total of £1,104,347.46. And on top of this, as if this family has not suffered enough, there has to be added the further sum of £8,859.83, being the costs incurred by FHP and MA in attending a hearing on 3 May 2005 (see below) – all in all a grand total of £1,113,207.29.

The litigation

187. I do not need to rehearse the history of this litigation in detail but there are certain features of it which I must mention as they bear directly on the disputes in relation to costs.

188. I first draw attention to observations I made in my previous judgment. I remarked (paragraph [1]) that "the proceedings have become needlessly complicated and, as a result, quite inordinately protracted." I added (paragraph [9]):

"But for a number of issues raised by the wife, the case would be fairly straight-forward. It has been made much more complex because of the wife's allegations (i) that the trusts are shams – with the consequence, so the wife would say, that the husband is to be treated as owning not 1,150 (23%) of the shares in HDC but 3,850 shares (77%), (ii) that the shares in HDC held by the trusts are in any event to be treated as available to the husband in accordance with the principle in Thomas v Thomas [1995] 2 FLR 668, and (iii) that the value of HDC has been artificially reduced by the husband (a) skimming off substantial sums in cash and (b) diverting its business to FHP. To a much more limited extent the case has also been made more complex because of the husband's allegation that the wife still has an interest in CWM."

It will be recalled that the wife failed on each of the issues she had raised, as did the husband on the issue in relation to CWM.

The litigation – the freezing order

189. On 18 November 2003 Pauffley J granted the wife a freezing order against the husband, continued by an order made by Bennett J on 25 November 2003. That freezing order was continued, with certain variations, until after the conclusion of the trial, finally being discharged by an order I made on 30 March 2007.

190. At the same time as the wife was obtaining a freezing order against the husband in this jurisdiction, she was seeking a similar order against the husband and the trustees in Jersey. An order was made by the Deputy Bailiff sitting in the Samedi Division of the Royal Court of Jersey on 20 November 2003. The order is relevant only because it reveals the wife's case as being that "the assets in this case exceed £6.7 million," whilst the husband's case was recorded as being (much more realistically as events proved) that the assets were "no more than £2.5 million, divided broadly equally between the parties." I should add that at one stage during his submissions Mr Wagstaffe sought to place some reliance upon the cross-undertakings in damages and costs which the Royal Court of Jersey had taken from the wife. But this reliance, as Mr Moor was quick to point out, was wholly misconceived, the cross-undertakings extending only to loss caused to the husband or costs incurred by the trustees as a result of "this order" – the Jersey order – and thus not having any wider significance.

The litigation – disclosure

191. As I have observed (paragraph [104]), Mr Moor was able to "point, with justification, to the great difficulties the wife has had throughout much of the litigation in making the husband comply with his obligations of full and frank disclosure." I must elaborate that somewhat.

192. The wife's questionnaire was dated 20 November 2003. The husband responded on 27 February 2004. The wife replied with a schedule of deficiencies. The husband responded (pursuant to an order made by District Judge Bowman on 26 March 2004) with further answers on 12 May 2004 and again (in accordance with an order made by Ryder J on 20 May 2004) on 17 June 2004. The wife replied with a further schedule of deficiencies on 16 August 2004, which produced a response from the husband on 2 September 2004. A further schedule of deficiencies followed the next day on 3 September 2004, producing (under the spur of an order made by District Judge Bowman on 6 September 2004 to which a penal notice was attached) further answers from the husband on 29 September 2004. The wife returned to the attack on 16 December 2004 with both a further schedule of deficiencies and a supplemental questionnaire, to which the husband (under the compulsion of an order made by Holman J on 17 December 2004) responded on 17 and 19 January 2005 respectively. (I should note that Holman J's order contained a recital making it clear that in the event that the order was not fully complied with the wife would invite the court to draw inferences adverse to the husband.) There matters seem to have rested until, starting with a letter from the wife's solicitors dated 11 October 2005, there was correspondence relating to the production of HDC's accounts for the year ending 30 June 2005.

The litigation – joinder of the trustees

193. It will be recalled (paragraphs [84]-[86]) that the wife's case on sham necessarily collapsed once I accepted, as I did, the evidence of Mr St George. I observed (paragraph [87]) that:

"The wife's case on sham is and probably always was quite hopeless. In my judgment it should probably never have been brought. And even if it was properly brought it should not have been pursued. I cannot help thinking that it was always doomed to complete failure. Certainly … it was doomed the moment Mr St George's witness statement was filed and it became apparent that he was prepared to go into the witness box to defend himself. At that point the wife and her advisers were faced with a simple if stark choice: they could either accept Mr St George's evidence – which would have been the end of their case – or they could, if they thought they had the material to justify such an attack, have mounted a frontal attack on Mr St George's credibility and professional integrity. Understandably, Mr Moor shrank from the latter course. But a case which, as I have said, should probably never have been brought, was allowed to continue, limping on to inevitable defeat and, in the process, significantly increasing both the length and the cost of the proceedings."

194. Mr St George's statement in its final form was dated 7 January 2005, but it was available in draft (and the crucial paragraph was already by then in its final form) when the trustees' application to be joined was considered by Holman J on 17 December 2004.

195. I have seen a transcript of the proceedings. Holman J expressed himself robustly. At one point he said "I'm not going to have some step which adds yet more to this, as [the husband] has just said, scandalous overall bill" – a costs bill which at that stage was estimated to be about £120,000 on each side. A little later Holman J observed of the trustees that "it is plain as a pikestaff that essentially they, and the husband, will be playing to the same song sheet … Plain as a pikestaff on what little I've read already." He added, "the trustees and the husband are mounting the same case, and the wife must be protected." The order made by Holman J gave the trustees permission to intervene and be joined as interveners "upon the following terms and conditions which, if they elect actually to intervene, the trustees will be deemed to have accepted," one of those conditions, set out in paragraph 1(iii) of the order, being that "in no circumstances will the trustees seek an order for costs directly or indirectly against the … wife."

196. On 5 December 2005, that is, precisely one week before the trial was due to begin on 12 December 2005, the trustees issued a notice of application for an order that paragraph 1(iii) of Holman J's order of 17 December 2004 be discharged. The notice of application indicated that the trustees would be seeking the adjournment of the application, to be dealt with when the court was dealing with the other costs issues. The grounds of the application, as set out in the notice of application, were in substance twofold: first, that the court "had no jurisdiction to fetter its own discretion in the way in which Holman J sought to do;" and, second, that "the basis upon which the intervention was originally made has been superseded by further developments in the litigation" which "in any event would have made it appropriate for the Intervenors to seek to intervene," namely the emergence of the parallel trading issue.

The litigation – FHP

197. On 26 April 2005 the wife obtained from Holman J a freezing order in relation to FHP. In support of her application (which was also supported by an affidavit from Mr G) the wife on 26 April 2005 swore an affidavit, paragraph 52 of which described her visit to Aberdeen to meet Mr G:

"The first thing I said to him was that I could not pay him anything for the information he may give me, as I had been advised that any payment would taint his evidence. I repeated that point several times during our meeting. I did tell him that when the Court case was over, I was sure that things could be sorted out amicably. He appeared to feel he had been used by the [A] family …"

She continued in paragraph 53 of her affidavit:

"Mr [G] then told me of the matters set out in his Affidavit."

198. As I have already recorded (paragraph [104]), Mr Howard accuses the wife of having been less than frank in the evidence she put before the court in support of that application. In this connection it is worth bearing in mind my findings as set out in paragraphs [113]-[114]:

"[113] … Mr G's evidence is tainted and was, I regret to say, demonstrably unsatisfactory in certain crucial respects. Put shortly, Mr G was offered a sum of £50,000 by the wife to give evidence, that sum to be paid out of whatever the wife recovers in the litigation. Although the wife said that this was a sum which Mr G was owed by way of bonus – owed, it may be noted, by HDC and not by her – the fact is that he was being paid for his evidence, knew that he was being paid for his evidence, knew that his evidence was crucial in relation to the allegation of cash dealing, and knew perfectly well what the wife wanted to hear him saying in the witness box. That is what I find insofar as it was not in fact admitted either by the wife or by Mr G.

[114] Moreover, neither the wife nor, more importantly for present purposes, Mr G was at all frank in the evidence they gave as to the circumstances of the meeting in Aberdeen at which they discussed the arrangement under which he would give evidence. The truth, insofar as it emerged at all, had to be dragged out of each of them in cross-examination. I am far from satisfied that I have, even now, a frank and accurate account of their discussion."

199. As Mr Howard points out, there was no reference in the wife's affidavit to the arrangement in relation to the £50,000. Moreover, says Mr Howard, the wife's case as set out in paragraph 53 of her affidavit did not accord with her oral evidence before me.

200. As it happened the matter came before me on the return date, 3 May 2005 – it was not known at that time that I was to be the trial judge. FHP, S and MA were represented by counsel, having been served with Holman J's order. I discharged the order Holman J had made on 26 April 2005, save as to costs, and reserved the costs of FHP and MA to the end of the substantive hearing of the wife's application for ancillary relief.

201. Pursuant to that order, and in accordance with an order which I made on 5 April 2007, FHP and MA seek an order against the wife in respect of their costs of the hearing on 3 May 2005. As particularised in a letter dated 3 May 2007, the amount sought is £8,859.83.

The litigation – previous costs orders

202. In addition to the orders of 17 December 2004 and 3 May 2005 to which I have already referred in this context, there are various other orders in relation to costs which have been made during the course of the litigation:

i) By her order dated 26 March 2004 District Judge Bowman ordered the husband to pay one half of the costs of and occasioned by that application. That half is estimated by the wife's solicitor to amount to some £3,000.

ii) By her order dated 6 September 2004 District Judge Bowman ordered the husband to pay costs assessed in the sum of £2,552.18 and, in addition, costs (to be assessed if not agreed) claimed in the further sum of £2,065.19.

iii) By an order dated 22 September 2004 District Judge Bradley ordered the husband to pay costs in the agreed sum of £1,992.87.

iv) By an order dated 18 February 2005 Singer J ordered the wife to pay £3,000 towards the husband's costs.

v) By an order dated 10 November 2006 I ordered the husband to pay £3,000 towards the wife's costs.

The litigation – Calderbank offers

203. It will be recalled that I found the matrimonial assets to be worth a total of £2,669,715 (paragraph [163]) and awarded the wife a total of £1,339,650, fractionally over 50% of the assets (paragraphs [163], [171]). But in assessing the value of the various Calderbank offers it must also be remembered that Drum Grange was sold after the trial had started and for an unexpectedly high price. The wife was able to find a special purchaser prepared to pay £2,700,000 (paragraph [159]), whereas prior to the trial the parties had been proceeding on the footing that Drum Grange was worth only £1,725,000.

204. Drum Grange was treated as belonging as to 25% to the wife and as to the remaining 75% to HDC. Between them the husband and the wife held 45.98% of the shares in HDC. Thus directly or indirectly the husband and the wife between them 'owned' some 59% of Drum Grange. So the difference between £1,725,000 and £2,700,000 made a very substantial difference to the overall value of the matrimonial assets. That difference has to be taken into account in assessing the true value of the various Calderbank offers.

205. It is convenient to summarise the various offers, starting with the husband's offer on 22 July 2005 (the earliest which is really relied on for present purposes by Mr Howard).

206. The husband made Calderbank offers on 22 July 2005 (offer worth "at least £1,500,000") and again on 16 November 2005 (offer of £1,600,000). The wife responded on 8 December 2005, seeking £2,250,000 and indemnity costs in the sum of £300,000. Following the sale of Drum Grange on 6 June 2006, the husband on 4 July 2006 made a further offer (offer of £1,850,000). The wife responded on 25 July 2006 when she said she would accept £2,000,000 and her costs.

207. I need not go into any further detail. It is clear that, making appropriate adjustments for what the parties at the time understood the true value of Drum Grange to be, the husband in the event very comfortably 'beat' each of his offers. One can, for example, compare the £1,850,000 offered on 4 July 2006, after Drum Grange had been sold, with the £1,339,650 the wife was actually awarded; the husband was offering the wife something of the order of 38% more than she recovered. The wife's counter-offers were even wider of the mark. Indeed, Mr Howard, with some justification, described the wife's proposal on 8 December 2005 as being "not in the real world."

Costs as between the husband and the wife – the issues

208. Subject to certain adjustments arising out of the matters referred to in paragraph [202] above, the husband seeks the following orders:

i) an order that the wife pay 50% of his costs prior to 22 July 2005; and

ii) an order that the wife pay the whole of his costs:

a) from 22 July 2005 to 11 December 2005;

b) from 12 December 2005 to 28 January 2007; and

c) from 29 January 2007 until 4 April 2007.

209. The wife for her part seeks the following orders:

i) an order that the husband pay the whole of her costs:

a) prior to 22 July 2005; and

b) from 22 July 2005 to 12 December 2005 (ie, including counsel's brief fees);

ii) an order (to which she submits) that she pay the whole of the husband's costs from 13 December 2005 to 28 January 2007; and

iii) an order that there be no order as to the costs from 29 January 2007 to 4 April 2007.

Costs as between the husband and the wife – prior to 22 July 2005

210. The dispute here is as to whether the husband should pay all the wife's costs or whether the wife should pay one half of the husband's costs. I do not agree with either contention. In my judgment there should in principle be no order in relation to these costs.

211. The question of conduct is at the heart of this dispute. Counsel are agreed that I have to have regard to the relevant provisions of the Civil Proceedings Rules 1998.

212. CPR 44.3(4) provides as follows:

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

(a) the conduct of all the parties;

(b) whether a party has succeeded on part of his case, even if he has not been wholly successful; and

(c) any payment into court or admissible offer to settle made by a party which is drawn to the court's attention (whether or not made in accordance with Part 36)."

213. CPR 44.3(5) provides:

"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 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 his case or a particular allegation or issue;

(d) whether a claimant who has succeeded in his claim, in whole or in part, exaggerates his claim."

214. The wife draws attention to the husband's litigation misconduct. In particular she points to the extreme difficulty she had in making the husband comply with his disclosure obligations: see paragraphs [191]-[192] above. Mr Moor submits that all the wife's efforts to obtain disclosure were met with delay, obfuscation and dogged resistance. The husband, he says, was "steadfast" in his reluctance to provide full and frank disclosure, behaviour which led inexorably to the wife's application for the freezing order. The husband, he says, has only himself to blame.

215. In relation to the period down to 19 January 2005 there is very considerable force in that complaint. Thereafter, in my judgment, there is not. As Mr Howard says, with some substance, this was a case of slow disclosure – I must emphasise, very slow disclosure – rather than non-disclosure. True it is that the husband was shockingly tardy in producing the accounts of HDC for the year to 30 June 2005, but that generated few additional costs and in any event went only to the question of the value of HDC. And despite the very clear marker put down by the wife before Holman J on 17 December 2004, she wholly failed to establish, either thereafter or at trial, that there had been any further significant non-disclosure by the husband.

216. Mr Moor points also to the fact that certain trust documents requested as long ago as in the wife's questionnaire of 20 November 2003 were produced only when Mr St George brought them to court during the final hearing. But these documents hardly bore upon the fundamental defects in the wife's case in relation to the trusts. And in any event their production had no discernible impact upon the wife's continuing, if misplaced, enthusiasm for her claim.

217. It will be recalled (see paragraph [12]) that even as late as the first day of the hearing I was still wholly unclear as to how exactly the case was being put by the wife. I raised this matter with Mr Moor, indicating that I wanted written clarification of exactly how the wife was putting her case. That was provided on 15 December 2005. So the wife can have been in no doubt as to the difficulties in her way. On the same day Mr St George gave evidence. His evidence if true, and Mr Moor did not seek to mount a frontal attack on his credibility, sounded the death knell for any case on sham (see paragraph [87]). Yet the wife persisted to the bitter end. Cross-examined by Mr Wagstaffe on 20 December 2005 (and having had the intervening weekend to think about what had been happening in court the previous week) the wife remained insistent:

"Q So in spite of Mr St George's evidence, you maintain that these trusts are shams?

A Yes.

Q And your case is that they were shams when they were set up, they're shams now, and they've been shams for all the times in between.

A Yes."

218. In addition to the matter of non-disclosure, Mr Moor points to other examples of what he says was the husband's "lamentable" conduct of the litigation. These complaints fall into two categories. First, says Mr Moor, there was what I might call litigation misconduct in the narrow sense of the expression: in addition to the husband's failures in relation to disclosure, his obstruction of the accountants (and the valuer) in their endeavours to value HDC and its assets; his failure to comply timeously with orders of the court; his failure to deal promptly or in some cases at all with issues raised in correspondence; all this bearing out the threat he is alleged to have made to the wife that he was looking forward to "giving your solicitor the run around." Secondly, says Mr Moor, there were such matters as the husband's attempt to remove the wife as a director of HDC; his failure to pay the outgoings on Drum Grange and on the Antigua property; his delay in paying the wife's maintenance; and his delay in returning the executed deed of transfer of Drum Grange and in paying the wife (as agreed) an advance instalment out of the proceeds of sale. Much of this is disputed by the husband both as to the facts and, with somewhat less plausibility, as to its relevance.

219. I have no doubt that there was a certain amount of litigation misconduct by the husband in addition to his much more serious and protracted failures to give proper disclosure. But it has to be kept in proportion. Despite everything pressed on me by Mr Moor, the picture, in my judgment, remains essentially as I have previously described it. As I said in paragraph [105]:

"What is clear is that both the husband and the wife have, at various stages in the litigation, been less – much less – than frank with each other and with the court. And there has been, in different ways and to different degrees, a certain amount of litigation misconduct on both sides."

I went on:

"That said, one must keep a sense of proportion. I do not think that either the husband or the wife has set out systematically to deceive the court. And the litigation misconduct is far indeed from the top end of the scale. Certainly there is nothing in any of this to justify any adjustment of the award that would otherwise be appropriate."

220. As against all this, Mr Howard points to the overarching fact that it was the wife's pursuit of a number of issues on which she wholly failed – and one of which (the sham issue) was pretty well hopeless from the outset – that inevitably increased the costs of the litigation and, moreover, increased the costs very significantly indeed. Mr Moor seeks to parry this blow by pointing to what he calls the "damning" judgment of Mr Registrar Turner. The scant reference I made to that judgment indicates its peripheral significance but Mr Moor's choice of words is telling. I have little doubt that the wife's case in relation to sham found its origin in Mr Registrar Turner's judgment and that she attached (or was advised to attach) undue weight to what it said.

221. The fact is, however, as I commented at paragraph [11], that the wife's case on sham was "muddled and confused" even as late as the first day of the final hearing. A claim that was always central to her case, and even more importantly in the present context was always central to the wife's thinking about her case, was (see paragraph [87]), probably always doomed to complete failure and certainly doomed the moment Mr St George's witness statement was filed and it became apparent that he was prepared to go into the witness box to defend himself. As I said (paragraph [62]), the wife's case on sham was lacking in any factual basis and in large measure it was in any event misconceived in law. The simple fact, in my judgment, is that the entire litigation was skewed from the outset by the wife's determined pursuit of a quite hopeless allegation that the trusts were shams. That allegation was, as Mr Howard rightly says, the cornerstone of the wife's case.

222. It is a regrettable, indeed deplorable, fact that the costs of this litigation were always going to be substantial, and that the husband's conduct in relation to disclosure must also have increased the costs appreciably, just as his fruitless pursuit of the claim in relation to CWM must have increased the costs somewhat. But it was the wife's pursuit of a number of issues on which she failed (five out of the six issues which fell to be decided at trial), and in particular her pursuit of the allegation of sham, which turned this from a case which could have been concluded in (say) 5 days – Mr Howard says even that estimate is being generous to the wife – into a case that took 14 days and which, in consequence, inflated the costs from the substantial to the very substantial. The simple fact is that a very large part of the costs of this litigation was generated by the issues on which the wife lost, issues, moreover, which were pursued with tenacious zeal to the very end.

223. Mr Howard recognises that a significant allowance has to be made to reflect in particular the husband's litigation misconduct. He asserts that sufficient allowance is made by awarding the husband only half rather than the whole of his costs for the period prior to 22 July 2005. I do not agree. Such an order would not fairly reflect the realities of the litigation during that period. Mr Moor for his part asserts that the wife should have all her costs. Again, I do not agree. Such an order would not fairly reflect the realities of the litigation, in particular the wife's zealous pursuit of so many issues on which she ultimately failed. Nor in particular can the wife seek to shelter (as in effect she does) behind the inadequacies in the husband's disclosure as justifying the stance she was adopting. Even after disclosure was for all practical purposes complete the wife continued with seemingly unabated zeal.

224. The order I propose to make in relation to the period prior to 22 July 2005 will inevitably achieve only an approximation to perfect justice. But that is unavoidable in the circumstances. Doing the best I can to weigh all the conflicting factors in the scales, I conclude that an order that there be no order for costs comes closest to achieving a fair, just and equitable outcome.

Costs as between the husband and the wife – prior to 22 July 2005 (adjustments)

225. There is no reason to disturb any of the orders for costs referred to in paragraph [202] above. Accordingly the order that there be no order as to the costs prior to 22 July 2005 is without prejudice to those various previous orders.

226. The husband claims that, whatever other order may be appropriate in relation to the period prior to 22 July 2005, the wife should nonetheless pay all his costs of the hearing on 3 May 2005. Mr Howard submits that the affidavits deployed before Holman J on 26 April 2005 were seriously misleading. There was, he says, a serious failure by the wife to comply with the strict obligation to make full and frank disclosure of all material matters which is mandated by cases such as Memory Corporation Plc v Sidhu (No 2)[2000] 1 WLR 1443, Re W (Ex Parte Orders)[2000] 2 FLR 927 and Re S (Ex Parte Orders)[2001] 1 FLR 308. Mr Howard asserts that the wife "made a conscious decision to deceive Holman J" and submits that "it is inconceivable that Holman J would have made the order that he did had the wife given him a frank account in her affidavit."

227. Mr Moor says this is hyperbole. The wife did give some account of her dealings with Mr G, even if it might have been fuller, and in the final analysis, he says, the question for the trial judge was not so much whether Mr G had been paid but rather whether he was telling the truth – and in relation to this Mr Moor submits (and this is really the best he can say) that whatever the other deficiencies in his evidence Mr G was right as to the existence of FHP.

228. There is much force in what Mr Howard says but I think he goes too far in his characterisation of the wife's conduct, lamentable though it was. I do not accept that there was a conscious decision to deceive Holman J. Albeit with some misgivings I am persuaded by Mr Moor that it would not be right to make any special order in relation to the costs of the hearing on 3 May 2005.

Costs as between the husband and the wife – from 22 July 2005 to 11 December 2005

229. Mr Howard relies upon the husband's Calderbank offer on 22 July 2005 as entitling him to the costs of the litigation thereafter. As I have observed, the husband comfortably 'beat' his offer and accordingly, says Mr Howard, referring for this purpose to rule 2.69B(2) of the Family Proceedings Rules 1991 as in force at the material time, the husband is entitled to his costs unless the court considers it "unjust" to make such an order.

230. Mr Moor disputes Mr Howard's conclusion, pointing to the fundamental principle, as Butler-Sloss LJ expressed it in Gojkovic v Gogkovic (No 2) [1992] Fam 40 at page 59, that it is a precondition for being able to rely upon a Calderbank offer that one has made full and frank disclosure and put one's cards on the table. As Mr Moor points out, that principle is reflected in rule 2.69D(1), which provides that in considering whether it would be unjust or just to make an order for costs in this context the court must take account of all the circumstances including "the information available to the parties at the time the offer was made" and "the conduct of the parties with regard to the giving or refusing to give information for the purpose of enabling the offer to be made or evaluated." Here, says Mr Moor, it would be "unjust" to make the order sought by the husband, given in particular his serious and continuing failures to give full and frank disclosure.

231. I have already considered not merely the extent, and more particularly the duration, of the husband's failings in relation to disclosure but also the nature of the wife's pursuit of the litigation even after those deficiencies had for most practical purposes been remedied. As I have said (see paragraph [215] above), although in relation to the period down to 19 January 2005 there is very considerable force in the wife's complaints, thereafter there is not. And I have commented (paragraph [223] above) on the wife's zealous pursuit of so many issues on which she ultimately failed, pointing out that she cannot seek to shelter behind the inadequacies in the husband's disclosure as justifying the stance she was adopting. For, as I have said, even after disclosure was for all practical purposes complete the wife continued with seemingly unabated zeal.

232. The simple fact, in my judgment, is that the wife rejected the husband's various Calderbank offers, and put forward her own inflated counter-offers, not because of any real embarrassment she was suffering as a result of any continuing non-disclosures by the husband but because of her own – and I have to say seriously over-inflated – view of the merits of her case. That was, of course, her privilege. But she has to pay the price. Far from it being "unjust" to the wife to hold her to the consequences of rule 2.69B(2) it would in my judgment be unjust to the husband to deny him the protection of the rule. The husband made generous offers. He handsomely 'beat' all of them. The wife, in all the circumstances, must take the consequences. The husband should be entitled to his costs from 22 July 2005 to 11 December 2005.

Costs as between the husband and the wife – from 12 December 2005 to 28 January 2007

233. The wife accepts that she must pay the husband's costs from the second day of the trial onwards, but disputes that he should have his costs of the first day (which include, of course, what is no doubt a substantial brief fee for Mr Howard). I can see no justification for this approach, though to be fair to the wife it is merely an aspect of her wider claim that she should have all her costs down to and including 12 December 2005. I have already explained why she should not have her costs prior to 22 July 2005 and why, on the contrary, she must pay the husband's costs from 22 July 2005 to 11 December 2005. Precisely the same reasoning as led to my conclusion in relation to the latter period applies to the trial itself. The husband is accordingly entitled to his costs of the trial and thereafter of the period until judgment, not merely from 13 December 2005 to 28 January 2007, as the wife accepts, but also of the first day of the trial. The husband is entitled, in my judgment, to his costs from 12 December 2005 to 28 January 2007.

Costs as between the husband and the wife – from 29 January 2007 to 4 April 2007

234. By parity of reasoning the husband is likewise entitled to his costs from 29 January 2007 to 4 April 2007. That leads inevitably, in my judgment, from my decision as to the consequences of the husband's successful Calderbank offers. It also follows, despite Mr Moor's protests to the contrary, from the wife's proper concession that the husband is entitled to his costs from 13 December 2005 to 28 January 2007. There is nothing in the events which took place between 20 January 2007 and 4 April 2007, and nothing in the husband's conduct of the litigation during that period, to disentitle him to the costs to which he would otherwise quite plainly be entitled. The husband is entitled, in my judgment, to his costs from 29 January 2007 to 4 April 2007.

Costs as between the husband and the wife – the wife's means

235. Taking the husband's figures (and making no allowance for the inevitable reductions when his costs are assessed) the husband is therefore entitled, subject only to a modest reduction to reflect the net burden of the costs orders referred to in paragraph [202] above, to costs in the total amount of £260,821.96 (that is, £19,798.47 for the period from 22 July 2005 to 11 December 2005 plus £223,904.71 for the period from 12 December 2005 to 28 January 2007 plus £17,118.78 for the period from 29 January 2007 to 4 April 2007). Mr Moor suggests that on a detailed assessment the husband might expect to recover some 75% of that figure. If that is right, then the figure becomes £195,616.47.

236. Pointing to rule 2.69D(1)(e), Mr Moor submits that I must have regard to the wife's means. So I should, but I also, of course, have to have regard to the impact of costs on the husband, for rule 2.69D(1)(e) refers to the "respective means of the parties."

237. The impact on the wife of the order I propose to make is undoubtedly severe. As I have already remarked, the wife, out of her award of £1,339,650, will have to meet her own costs of no less than £510,531.10, thus reducing what she is left with to £829,118.90, or 61.89%, of her award. If she has to pay the husband £195,616.47, she will be left with only £633,502.43, or 47.28%, of her award.

238. Mr Howard says that ameliorating the disadvantage to the wife merely imposes a correspondingly greater hardship on the husband. This is not a case where there is a great disparity of wealth between the husband and the wife. On the contrary, I awarded the wife a fraction over 50% of the matrimonial assets. I bear in mind that the husband may have certain expectations under the trusts and conceivably (though he denies it convincingly) under the estate of his now deceased brother Anthony, just as I bear in mind that the husband, with the advantage of HDC's business, may (although this is far from certain) be better able than the wife to maintain or improve his financial position. I accept that the order I propose to make will significantly impair the wife's ability to maintain herself in the style to which she has become accustomed, but the brute fact – and fact it is – is that the wife has brought this upon herself. It was the wife, whatever may be said against the husband (and I have already taken his conduct into account in arriving at my conclusions in relation to costs), who chose to make this litigation much more complicated and expensive than it needed to be. It was the wife who chose to reject a series of generous Calderbank offers and whose unrealistic approach to the litigation is only exemplified by the terms of her Calderbank counter-proposals.

239. I have regard to the wife's means and, in particular, to the impact on her of the costs order I propose to make but there is at the end of the day, in my judgment, no reason why the order which would otherwise be appropriate should be ameliorated in the way suggested by Mr Moor. I decline to do so.

Costs as between the trustees and the husband

240. There is no reason why the husband (by which I mean the husband in his character as a party to the ancillary relief proceedings) should be required to pay any part of the trustees' costs. It was not the husband who put the validity of the trusts in issue; it was the wife.

241. Of course, if there is a shortfall between the trustees' costs and whatever they recover from the wife, then the trustees may seek to recover that shortfall out of the trust assets, and in that event the burden may, indirectly, fall on the husband as one of the beneficiaries: cf, Alsop Wilkinson (A Firm) v Neary[1996] 1 WLR 1220 at page 1225. But that is not a matter which is before me and I say no more about it.

Costs as between the trustees and the wife

242. There was a certain amount of debate in the skeleton arguments as to whether or not Holman J had been justified in making the protective costs order (if that is what it was) or, what comes to very much the same thing, making the order for the joinder of the trustees conditional upon their submitting to a particular order as to costs. I need not enter into this debate for Mr Moor was able to place in the trustees' way an obstacle that Mr Wagstaffe conceded he could not overcome.

243. In Campaign Against Arms Trade (an unincorporated association, claiming by its authorised officer, Ann Feltham) v BAE Systems PLC[2007] EWHC 330 (QB), King J had to consider what is in essence the very same point as that which Mr Moor now seeks to take against the trustees. The applicant in that case had obtained a protective costs order, which the defendant did not seek to challenge until the conclusion of the substantive hearing. At that point the defendant sought to argue that the protective costs order was outside the jurisdiction of the court and that it should never have been made. The challenge failed. It suffices to quote what King J said at paras [105]-[106]:

"[105] In these circumstances where no application to vary or discharge the order has been made and where the Applicant has patently relied upon the continuing existence of the order both to issue and to pursue the application for … relief to a full and completed hearing, it would in my judgment be quite wrong and contrary to justice for this court at this stage even to contemplate varying or discharging the order, whatever the merits of the rival submissions on the correctness of that order as an exercise of the court's discretion.

[106] It might have been different had I had formed the view that the order had been made without jurisdiction …"

244. Mr Moor says that the terms of Holman J's order could not have been clearer. There was no appeal from that order and the trustees did not make their application until immediately before the trial. The failure to make an application "in good time prior to the final hearing" is, he says, fatal to the application that the trustees now seek to make. Implicitly he accepts that an application timeously made might have been successful – he does not suggest that Holman J's order precluded the making of such an application – and realistically accepts that if an application had successfully been made and the wife had nonetheless persisted in her claim then an order for costs against her would now "undoubtedly follow." But that, he says, is not what happened.

245. Mr Moor is also dismissive, and rightly so, of the assertion that the trustees required to be joined because of the parallel trading issue. In my judgment they did not. Plainly they had an interest in the outcome of the proceedings (see paragraphs [123] and [129]), but that was not an interest requiring them to be actively engaged in the litigation, let alone joined as parties. The fact that if the wife had made good her allegations the trustees might, as Mr Wagstaffe suggests, have been obliged to intervene in the running of HDC is neither here nor there. That would depend upon the outcome of the proceedings; but it certainly did not require let alone compel the trustees (as Mr Wagstaffe would have it) to join in the proceedings.

246. The same goes for the Thomas v Thomas point. I would strongly deprecate any suggestion that trustees require to be joined as parties to ancillary relief proceedings merely because such a point is being run. As I observed in paragraph [29], a Thomas v Thomas application usually proceeds on the assumption that the trust is entirely genuine, that the trustees are conscientiously acting in that capacity and that they will exercise their fiduciary powers bona fide and in a lawful manner. In such a case there is no need for the trustees to be joined and it is undesirable that they should be, not least because of the inevitable lengthening of the proceedings and consequential increase in costs.

247. But in relation to the sham issue the position seems to me to be entirely different. The wife was claiming that the trusts were shams. Moreover, she was seeking transfers of two properties – Drum Grange and the Antigua property – in which HDC on the face of it had beneficial interests. Given that she never sought to join or make any claim against HDC itself, the only way in which the wife could obtain an order for the transfer of the two properties was by joining those who controlled HDC, in other words, not merely the husband but also the trustees. (The trustees held 54% of the shares; between them the wife and the husband held only 45.98%.)

248. The wife's claim in relation to the trusts was, to use the careful terminology adopted by Lightman J in Alsop Wilkinson (A Firm) v Neary[1996] 1 WLR 1220 at page 1223, a hostile trust dispute. I simply do not understand how that claim could usefully or effectively be litigated unless the trustees (absent the beneficiaries) were joined in the proceedings. Unless the trustees were joined no decision would have been binding upon them: St George's Healthcare NHS Trust v S, R v Collins ex p S [1999] Fam 26 at pages 58-59.

249. The appropriate course in a case such as this is to allow the third party to intervene in the ancillary relief proceedings: see Tebbutt v Haynes [1981] 2 All ER 238 esp per Brightman J at pages 244, 245. The reason is simple: if the third party is joined there will be an issue estoppel binding the third party, otherwise there will not.

250. Mr Wagstaffe does not suggest that I should not follow Campaign Against Arms Trade (an unincorporated association, claiming by its authorised officer, Ann Feltham) v BAE Systems PLC [2007] EWHC 330 (QB). And he accepts that he cannot therefore recover any costs prior to 5 December 2005. But, he submits,

i) absent the condition attached by Holman J to his order the trustees would have the plainest possible claim for costs against the wife; and

ii) there is no unfair prejudice to the wife in being ordered to pay the trustees' costs with effect from the point at which she was put on notice that the trustees sought to be released from the condition attached by Holman J.

Subject to one important qualification I accept these submissions, which do not, in my judgment, conflict in any way with the important and salutary principle laid down by King J in Campaign Against Arms Trade (an unincorporated association, claiming by its authorised officer, Ann Feltham) v BAE Systems PLC[2007] EWHC 330 (QB). The qualification is this, that the wife was entitled to a reasonable time in which to reconsider her position once it became clear that the trustees were indeed seeking costs against her.

251. Given the significance of the trustees' sudden and completely unheralded change of stance, and given that their notice of application reached the wife so very shortly before the start of a complex trial, the wife could not reasonably be expected to respond 'on the hoof.' In practical terms the real question seems to me to be whether the trustees should have their costs from the end of the first week of the trial (that is, their costs from 17 December 2005) or only from the end of the second week of the trial (that is, from 22 December 2005). In my judgment the trustees should have their costs from 17 December 2005. By the end of the first week of the trial (that is, by 16 December 2005) the perilous nature of her position vis-à-vis the trustees must have been clear to her, yet the wife determined to proceed and in the event persisted to the bitter end (see paragraph [217] above). The trustees are entitled, in my judgment, to their costs from 17 December 2005 to 28 January 2007.

252. That being so, there is no reason why the trustees should not also have their costs from 29 January 2007 to 4 April 2007.

253. Taking the trustees' figures (and making no allowance for reductions when their costs are assessed) the trustees are therefore entitled to costs in the total amount of £45,750 (that is, £40,637.26 for the period from 17 December 2005 to 28 January 2007 plus £5,112.74 for the period from 29 January 2007 to 4 April 2007). Assuming that on a detailed assessment the trustees were to recover 75%, then the figure becomes £34,312.50.

254. Mr Moor raises the same point under rule 2.69D(1)(e) against the trustees as against the husband. The point has, of course, to be considered separately in relation to the trustees, where the considerations are not by any means the same as in relation to the husband. But I come to the same conclusion. There is at the end of the day, in my judgment, no reason why the order in relation to the trustees which would otherwise be appropriate should be ameliorated in the way suggested by Mr Moor. I decline to do so.

255. Mr Wagstaffe seeks costs on an indemnity basis. I do not see why, in all the circumstances, such an order would be appropriate. (It is to be noted that the husband seeks costs only on the standard basis.) The costs will be assessed on the standard basis.

Costs as between FHP and MA and the wife

256. I can deal with this quite shortly.

257. In her letter dated 3 May 2007, MA makes clear that the basic thrust of the application for costs is that the wife's application was "underhand and unnecessary," that Mr G, on the basis of whose evidence (together with the wife's evidence) the application was made, "has been shown to be a man of questionable character" and that "S and I never took business away from HDC we instead gave it custom and considerable sales … FHP never hurt HDC."

258. In contesting this version of the facts, Mr Moor points to what I said in paragraph [123]:

"That there was parallel trading, that FHP was undercutting HDC, and moreover using HDC's processing facilities to do so (and at a cost unduly advantageous to FHP), and that the effect of all this may in principle have been to divert some profit away from HDC, is pretty clear, just as it is a fair inference that the fact that FHP was established less than a month after the wife obtained the first freezing order is more than a mere coincidence."

I added at paragraph [126]:

"The fact that the start of FHP's business occurred so soon after the freezing order was obtained is highly suggestive, but not necessarily suggestive of any wrongdoing by the husband. After all, S, whose destiny was strongly linked with HDC but who held only one share, must have been concerned about the possible ramifications for him of the freezing order. And this is not mere speculation. S did not give evidence but MA did and, as Mr Moor pointed out, she admitted whilst giving evidence that "my intention was to get some income away from HDC.""

259. Mr Moor submits that in all the circumstances the wife was justified in mounting her application and that the fact that she agreed to the discharge of the order on the return date does not, in the circumstances, show that her initial application was unjustified. The claim against her for costs is, he says, wholly without merit.

260. I think there is much force in Mr Moor's submissions. In a very real sense FHP and MA brought the application upon themselves. In all the circumstances I conclude that as between the wife on the one hand and FHP and MA on the other hand there should be no order in relation to the costs of the hearing on 3 May 2005.

The costs of the argument about costs

261. The husband was seeking half his costs prior to 22 July 2005 (an ambition in which he has failed) and all his costs thereafter (an ambition in which he has succeeded). Therefore (and ignoring for this purpose the adjustments referred to in paragraphs [225]-[226] above), he has succeeded as to £260,821.96 rather than the £362,646.71 (ie, £260,821.96 plus one half of £203,649.50) he was hoping for. I do not think that the costs of arguing about the costs should merely follow in strict arithmetical proportion the extent of the husband's success, but this is plainly an important factor that I have to take into account. Taking that into account, and having regard to the time taken up in dealing with the various parts of the dispute in relation to costs, I think that justice will best be done if I order the wife to pay 75% of the husband's costs of the argument about the costs. That, on his figures, comes to £15,203.63.

262. The trustees were seeking the whole of their costs from 5 December 2005 onwards on the indemnity basis. In the event they recovered their costs, but only on the standard basis, from 17 December 2005 onwards. I do not have a precise figure for their costs between 5 and 11 December 2005, but assume it was fairly trivial, bearing in mind that brief fees are included for present purposes in the figures for the period from 12 December 2005 to 28 January 2007. On their figures, the trustees' costs from 12 December 2005 to 4 April 2007 amount to £79,239.50. Under my order, and assuming that on a standard assessment they will receive only 75%, the trustees will actually receive £34,312.50. In all the circumstances justice will best be done if I order the wife to pay 50% of the trustees' costs of the argument about the costs. That, on their figures, comes to £3,932.75.

Costs – conclusions

263. In summary:

i) The orders for costs referred to in paragraph [202] above will remain undisturbed.

ii) The wife will pay the husband (on the standard basis):

a) his costs from 22 July 2005 until 4 April 2007; and

b) 75% of his costs since then.

iii) The wife will pay the trustees (on the standard basis):

a) their costs from 17 December 2005 until 4 April 2007; and

b) 50% of their costs since then.

iv) Otherwise, there will be no order as to costs.

264. On their figures, and making no allowance either for the adjustments called for by the orders referred to in paragraph [202] or for the inevitable reductions on assessment, this means that the wife will have to pay costs:

i) to the husband of £276,025.59 (that is, £260,821.96 plus £15,203.63); and

ii) to the trustees of £49,682.75 (that is, £45,750 plus £3,932.75).

If one assumes that 75% will be recovered on a standard assessment, these figures reduce to £207,019.19 and £37,262.06 respectively – a total of £244,281.25.

Assessment of the costs

265. Everyone is agreed in wishing to avoid, at the end of this expensive and long-running litigation, the burden and further expense of an assessment of these costs by a costs judge. I agree. I would urge the parties to reach agreement so that an assessment can be avoided.

Interest

266. Although I heard various submissions in relation to the question of interest, this is a matter best considered in the light of the order I have actually made. I would hope that agreement can be reached on this issue. If not, I will have to rule on it.

The order

267. Counsel must now agree (so far as they can) a draft order to give effect to this judgment. Bearing in mind the great delays there have been in the past in agreeing previous orders I have made, I am going to direct that a draft (to be agreed between Mr Howard and Mr Wagstaffe) of the order being sought by the husband and the trustees is to be served on the wife's representatives (and sent at the same time to me) by no later than 12 noon on Wednesday 18 July 2007. A copy of that draft, amended to show any different provisions being contended for by the wife, is to be served on the husband's and the trustees' representatives (and sent at the same time to me) by no later than 12 noon on Tuesday 24 July 2007. If the parties cannot agree, then I would propose to decide any remaining issues on the basis of written submissions, rather than putting the parties to the further expense of a hearing which, if past experience is anything to go by, may well be difficult to arrange at a time convenient to all. I am sitting in London until 3 August 2007. I make it clear that I am determined to finalise the order before I leave.

Parting observations

268. Before leaving this litigation I want to make two final observations.

269. The first relates to the overall costs. Directly or indirectly this family has incurred costs amounting in all to £1,113,207.29 (see paragraph [186] above) in fighting over matrimonial assets which at the end of the day I have found to amount to only £2,669,715 and which even if the wife's case on sham had succeeded would still have been worth only £4,290,315. So some 41.5% of the matrimonial assets have gone in costs.

270. It may be that the 'mega' rich can afford to squander grotesque sums in costs. The allusion is, of course, to Moore v Moore[2007] EWCA Civ 361, [2007] 2 FCR 353, at para [6]. Lesser mortals cannot. Costs in too many so-called 'big money' cases – in modern conditions many such cases do not in truth involve 'big' money at all – are, as here, grossly disproportionate to either the amounts or the issues at stake. I have had occasion before to deplore the expenditure – one is tempted to say the waste – of money in such cases: see, for example, Re G (Maintenance Pending Suit)[2006] EWHC 1834 (Fam) at para [46]. Other judges have also expressed their concerns. A very recent example is provided by Wood v Rost[2007] EWHC 1511 (Fam), where, speaking of a case which had been conducted at "vast expense," the Deputy Judge lamented that the late Mr Charles Dickens was no longer alive to write a 21st century sequel to Bleak House. The simile, if I may say so, is all too apt. The accusatory finger which in the 19th century was appropriately pointed at the High Court of Chancery is, in the modern world, more appropriately pointed at the Family Division.

271. The other point relates to the impact of all this on the wife. The wife, out of her award of £1,339,650, has to meet her own costs of £510,531.10, thus reducing what she is left with to £829,118.90, or 61.89%, of her award. On top of that she has to pay the husband and the trustees costs which (see paragraph [264] above) will swallow up a further £244,281.25 [Postscript: this figure has now been agreed (see below), subject only to deduction of the sum of £2,065.19 referred to in paragraph [202] above] thus reducing what she is left with yet further to only £584,837.65, or 43.65% of her award. (The husband does not escape lightly, for he is left having to pay the balance of his costs – some £275,000.) That is a heavy price for the wife to have to pay, but it is the consequence of the misplaced zeal with which she chose to conduct a case built on exiguous foundations. I only hope that others will pay heed and that similar cases will in future be pursued with more circumspection.

Postscript (25 July 2007)

272. In the event the parties were able to reach agreement on a form of order, proposed by the husband and the trustees, which obviated the need for any further argument and, indeed, for any assessment of the costs. Accordingly, on 24 July 2007 I made the following order:

"UPON THE BASIS THAT it is agreed that the Respondent owes the Petitioner the sum of £2,065.19 net in respect of the prior orders for costs set out in paragraph 202 of the Judgment on Costs (which orders remain unaffected by the orders herein)

AND UPON the basis that it is agreed that the said liability of £2,065.19 is discharged by compliance with paragraph 2 below

AND UPON the basis that it is agreed that no interest is payable in respect of the prior orders set out in paragraph 202 of the Judgment on Costs

IT IS ORDERED THAT

1 The Petitioner do pay to the Respondent on the standard basis

(a) his costs from 22/7/05 until 4/4/07; and

(b) 75% of his costs from 4/4/07 onwards

such costs being agreed in the sum of £207,019.19.

2 The sum of £204,954 (being the £207,019.19 referred to in paragraph 1 above less the sum of £2,065.19 as referred to in the preamble to this order) be paid to the Respondent's solicitors on his behalf on or before 5.00pm on 24/7/07 out of the fund of £400,000 referred to in the fourth preamble to the order herein of the 16th April 2007

3 The Petitioner do pay to the Intervenor on the standard basis:

(a) their costs from 17/12/05 until 4/4/07; and

(b) 50% of their costs from 4/4/07 onwards

such costs being agreed in the sum of £37,262.06

4 The said sum of £37,262.06 be paid to the Intervenors' solicitors on their behalf on or before 5pm on 24/7/07 out of the fund of £400,000 referred to in the fourth preamble to the order herein of the 16th April 2007

5 The Petitioner do pay interest at the rate of 8% on any sums outstanding under paragraphs 1 and 3 of the order herein from 5pm on 24/7/07 until the date of payment

6 In so far as is required to permit compliance with paragraphs 1-4 herein and forthwith thereupon the Petitioner be and is hereby released from her undertaking set out in paragraph (b) of the fourth preamble to the order of 16/4/07;

7 Save as aforesaid there be no order as to costs and in particular no order for costs between the Petitioner and FHP and/or MA"

273. This litigation has now, finally, come to an end.