Anna Anatolyevna Timokhina v Alexander Valeryevich Timokhin

This appeal is brought with leave granted by Sir Stephen Stewart on 25 March 2025. I shall refer to the parties as they were below, the Appellant being the Defendant and the Respondent being the Claimant.

On 18 December 2024, Senior Master Cook (“the Master”) granted the Claimant permission to amend his claim form. This appeal by the Defendant arises from orders which the Master made at the same time concerning costs. It is necessary to consider the relevant events leading up to the Master’s order in some detail.

The Claimant and the Defendant were married between 2004 and 2018. Their divorce proceedings took place in Russia. In those proceedings they were ordered to pay sums of money to each other, and Russian courts have issued writs of execution in respect of each party’s liability to the other. The effect of the first pair of orders in Russia, on 24 January 2023, was a net liability by the Defendant to the Claimant in the sum of £17,416.67. However, on 11 October 2023 the Leningrad Regional Court made a substantial reduction in the sum payable by the Claimant to the Defendant, thereby increasing her net liability to him, to £417,416.67. That decision was upheld on appeal on 28 February 2024 by the Third Cassation Court in St Petersburg. On 8 May 2024 the Supreme Court of the Russian Federation denied her permission for a further appeal.

The Claimant brought proceedings in England on 18 April 2024 seeking the recognition and enforcement of the decision of the Third Cassation Court and an order for payment of the £417,416.67.

On 9 August 2024 the Defendant wrote to the Claimant, pointing out that he could not seek recognition and enforcement of the decision of the Third Cassation Court because that court’s order was not an order for the payment of money but was merely the rejection of an appeal. She indicated that she was prepared in principle to agree to his amending his claim rather than discontinuing and starting again, so that the claim would refer to the decisions of the Vsevolozhsky City Court and Leningrad Regional Court instead, but on the basis that he pay her costs of and occasioned by the amendment as well as any costs thrown away by him in seeking to enforce the wrong judgment.

The present appeal essentially concerns costs incurred by the Defendant up to and including that point, and in particular the costs of taking counsel’s advice on the claim as it was originally framed and the drafting of the letter of 9 August.

On 16 August 2024:

On 19 August 2024 the Claimant’s solicitors responded by email, agreeing “to the lodging of the amended Part 8”.

At that point, whether or not there was an enforceable agreement, there appeared to be no issue between the parties as to the way forward. The Claimant had indicated agreement to “the balance of your email” and therefore to payment of “reasonable costs in relation to consideration of the original Claim and seeking specialist advice from counsel”.

The Claimant filed the amended claim and the Court asked for evidence of the Defendant’s consent. On 2 September 2024, the Claimant’s solicitors therefore asked the Defendant’s solicitors by email for a repeat confirmation.

The Defendant’s solicitors, by telephone, indicated that they needed to discuss the matter with counsel. Then, on 4 September 2024 they wrote a letter referring to the Defendant’s understanding that the Claimant had agreed to pay her costs incurred in dealing with the initial defective claim. They attached a statement of costs totalling just over £32,000 and invited the Claimant to agree it.

The sheer size of that costs bill appears to have triggered the ensuing problems.

In a reply on 6 September, the Claimant’s solicitors asserted that there was an agreement dating from 16 and/or 19 August to the effect that the Defendant consented to the amendment of the claim on condition that the Claimant paid her reasonable costs of and occasioned by the amendment. They accused her of now trying to “strongarm” him into agreeing to pay an “obscene” level of costs. They went on to set out various reasons why the quantum of costs being sought was disputed, and added:

“For the avoidance of doubt, you are not entitled to your costs of the entire claim so far, but only those costs which have been occasioned by the amendments (for example, our client accepts that this would include the drafting of the letter to our firm in which you pointed out an amendment might be necessary).”

They also said that the Claimant was open to making an interim payment towards the costs at a sensible level, and asked for a breakdown of the asserted costs with hourly rates in the hope that a figure might be agreed.

The Defendant’s counsel, Bláthnaid Breslin, now contends that the words “costs of and occasioned by the amendments” were not apt to describe costs incurred before the amendments were made, including the costs of obtaining advice on the claim as originally framed. Those would be properly described, instead, as “costs thrown away”. She points to paragraph 4.2 of CPR PD 44 which, in guidance on the “general effect” of some commonly made orders as to costs, gives separate definitions including:

The Defendant’s solicitors responded on 10 September 2024, reiterating that they believed the Claimant to have agreed to the order which they sought. They pointed out that in quoting from the correspondence, his solicitors had omitted the words “in relation to consideration of the original Claim and seeking specialist advice from counsel” which are set out in paragraph 7 ii above.

This letter too did not make the distinction between “costs of the amendments” and “costs thrown away”, no doubt because it had not yet been appreciated in those terms. Instead, the Defendant’s solicitors considered the way forward. They noted that the Claimant did agree that he would be liable for the costs of drafting the letter of 9 August, and asserted that these logically would also include the costs of obtaining the advice which led to the drafting of the letter. They opposed the suggestion that the costs were “bizarre or excessive” and offered to prepare a more detailed schedule.

The Claimant’s solicitors replied by email on 17 September, attaching a proposed consent order dealing with the amendment, the costs of and occasioned by it and case management directions for the litigation. They summarised the position: “The parties disagree about the quantum of costs of and occasioned by the amendments. Such disagreements are not uncommon and detailed assessment will determine the appropriate quantum.” They accused the Defendant of playing tactical games and threatened to make an application for permission to amend and for costs if the consent order was not agreed.

The Defendant’s solicitors responded on 18 September, attaching their proposed changes to the consent order, refuting the Claimant’s comments and making clear that there was a substantial issue between the parties about the size of an interim payment of costs.

In the draft orders the relevant paragraphs read:

Ms Breslin submits that the Defendant was seeking an order which, properly interpreted, was for “costs thrown away”. But instead of putting it in those terms, her solicitors instead sought “costs of and occasioned by the amendments” with the words in brackets explaining that these would include the costs of the 9 August letter and advice relating to it.

On 24 September 2024 the Claimant’s solicitors wrote back:

“My client will not agree to pay for specific items on a pound for pound basis. That has never been agreed, and it would be an irregular order that would defeat the purpose of detailed assessment. My client remains willing to pay your client’s reasonable costs of the amendments to be assessed (given that they have not been agreed). My client does not see why this is opposed as your client can make her submissions on what is reasonable, in the ordinary way, at detailed assessment.

My client believes your client’s costs are obviously unreasonable and excessive – but this can be determined by detailed assessment. My client will not pay an interim payment that presupposes that unreasonable costs are reasonable. My client’s final offer of an interim payment is £2000.”

In that email, the Claimant was not refusing as a matter of principle to pay costs of any specific type, though the email did omit any reference to the previous acceptance (on 6 September) of liability to pay the reasonable costs of the letter of 9 August. Rather, his solicitors proposed that all the costs claimed should be the subject of detailed assessment in relation both to scope and amount.

It is not clear why the Claimant described the Defendant’s draft order as seeking payment “for specific items on a pound for pound basis”. The Defendant’s proposal sought costs including those of the 9 August letter and advice relating to it, to be the subject of detailed assessment if not agreed.

On 25 September 2024 the Defendant’s solicitors replied, stating yet again that the amendment was not opposed but that this was subject to agreement for the Claimant to pay the costs of the amendments, “to include the costs incurred as a result of your client’s issue of a defectively pleaded claim in the first instance and advice from specialist counsel in that regard and which led to me writing to you on 9th August 2024”. They accused the Claimant of resiling from an agreement to that effect and described the offer of an interim payment of £2000 as derisory. They added that if he persisted in resiling from what had been agreed, he would have to make his amendment application, though this would not be opposed subject to seeking an appropriate costs order.

In the absence of agreement, an application for permission to amend was issued on 30 September 2024. The application argued the case in trenchant terms. It said that the Defendant had (1) on 16 August, consented to the amendment on the basis of payment of her “reasonable costs in relation to consideration of the original Claim and seeking specialist advice from counsel”, (2) on 4 September, said that unless her total costs of the claim so far (c. £32,000) were paid, her consent to the amendment would be vitiated, (3) on 11 September, asserted that the Claimant had agreed to pay all of her costs “on a pound for pound basis” and (4) on 18 September, made a similar insistence. It stated that the Claimant did not agree to any “Pound for Pound Items”, defined as the costs of the 9 August letter and counsel’s advice relating to it. It contended that although the Defendant had said she “does not oppose” the amendment she nevertheless did not consent to it. As previously threatened, the Claimant sought indemnity costs of the application.

On 13 November 2024 the Defendant submitted a witness statement from Ms Broadley of her solicitors. The witness statement summarised the communications referred to above. Ms Broadley noted the Claimant’s acceptance that the Defendant would be entitled to the costs of the drafting of the letter of 9 August 2004 and argued that, logically, she should also be entitled to the costs of obtaining counsel’s advice on the drafting of that letter. She denied that this was simply a question of quantum which could be dealt with by way of detailed assessment.

The Claimant’s solicitors wrote to the Master on 15 November 2024, setting out their position. In a nutshell, it was that the dispute could and should have been dealt with at the detailed assessment stage and that the Court should not have been troubled with the application. They provided a bundle including the inter partes correspondence and the two sides’ rival draft orders which, with some immaterial updating, were in the terms quoted at paragraph 20 above.

The application was considered on paper by the Master.

On 5 December 2024, the Master made an order on the erroneous basis that its terms relating to costs were agreed. The mistake was pointed out and the Master asked the parties to provide a bundle and their submissions on all matters in dispute. The Defendant and the Claimant set out their respective positions in writing on 13 and 17 December 2024 respectively.

By their letter dated 13 December, the Defendant’s solicitors referred the Master to their witness statement and draft order. They made the uncontroversial observation that there was disagreement about the quantum of costs and the amount of an interim payment. They also stated that the Claimant had “sought to limit the scope of the costs the Claimant was to pay to the Defendant, to costs of and occasioned by the amendment (‘the Amendment Costs’) which did not reflect the agreement reached in this regard in correspondence and sought to exclude the costs of counsel’s advice in relation to their defective Part 8 Claim”. They resisted the Claimant’s application for the costs of the amendment application, on the ground that the Defendant had acted reasonably throughout.

By their letter dated 17 December the Claimant’s solicitors made submissions in response, contending that the dispute could and should have been dealt with upon detailed assessment of costs and that the application was therefore unnecessary. The Claimant accepted liability for costs in principle but criticised the Defendant for seeking a “bizarre” order which quantified her costs in excessive amounts, and for confusing “the difference between the making of a costs order in principle (which will happen now) and the assessment of the amount of costs under that order (which will happen at the conclusion of these proceedings)”. His solicitors argued that the unreasonable refusal of consent to the amendment had prevented the underlying dispute from being progressed towards trial. They asked for indemnity costs on the basis that they should not have had to make the application at all.

On 18 December 2024 the Master made the order which is under appeal. In particular:

Having made that order, the Master informed the parties by his clerk that:

“… he did review the previous sealed order and sent the new draft

… yesterday. He did so having taken full account of the material supplied by both sides. He accepted the written submissions made on behalf the Claimant and rejected the written submissions by on behalf of the claimant and according to made the order sought by the Claimants.”

That final sentence contained clerical errors, one of which plainly was that “on behalf of the claimant” should have read “on behalf of the Defendant”.

By her grounds of appeal the Defendant contends that:

For the Defendant, Ms Breslin accepted that the Court when making orders as to costs has a wide discretion with which an appellate court will not often interfere, and that the nature of the duty to give reasons for a costs decision will vary according to the circumstances and that in some cases, the reasons can be inferred from the circumstances. In the present case, however, she submitted that the Master can be seen to have erred in principle by not making an order which clearly provided for costs thrown away and that, as regards ground 1, his reasons were simply insufficient to enable the Defendant to know why she had lost. In particular it was not clear what if any reliance had been placed on the contents of the amendment application (as opposed to the submissions filed in December 2024) and whether the Master thought that the parties had reached any agreement (and if so, in what terms).

As regards ground 2, Ms Breslin submitted that there clearly was a dispute between the parties about the scope of the costs to be covered by the proposed order. The Claimant had resiled from the earlier agreement to pay the reasonable costs of the 9 August letter and advice relating to it, and now proposed to leave it to the Costs Judge in an eventual detailed assessment to decide whether or not those costs could be recovered. The Master therefore must have erred if he took the view that the parties were actually agreed and that the Defendant was manufacturing a non-existent dispute.

As regards ground 3, Ms Breslin submitted that although the Defendant’s solicitors had not drawn the distinction between “costs of and occasioned by the amendments” and “costs thrown away”, the parties had in fact agreed that there would be payment of two items which were properly characterised as the latter. It was, she submitted, obvious that the Claimant should pay the reasonable costs of the letter of 9 August which identified the defect in the claim and put forward the solution of an agreed amendment. And it was only logical for him to be liable for the reasonable costs of the Defendant’s lawyers considering the defective claim and deciding how to respond to it. Ms Breslin submits that the Master’s order, simply for “costs of and occasioned by the amendments”, when read in accordance with CPR PD 44, does not provide for those items and therefore is wrong and unfair.

As to ground 4, Ms Breslin submitted that if those costs were indeed recoverable, then CPR 44.2(8) provided for the interim payment of a “reasonable sum on account of costs”. The costs claimed were in excess of £30,000, and therefore an interim payment of £15,000 would have been conservative. She submitted that the sum of £2,000 proffered by the Claimant and awarded by the Master was plainly insufficient.

As to ground 5, Ms Breslin submitted that the starting point was that a party needing to amend would normally pay the costs of the application for permission to amend. In this case the Defendant had behaved reasonably throughout, and was right to ask the Master to include the clarificatory words in the order which would ensure the recovery of what were, in reality, costs thrown away. And, even if it was right to order the Defendant to pay the costs of the application, there was nothing taking the case “out of the norm” (see Houssein & Ors v London Credit Ltd & Anor [2024] EWCA Civ 721 at [96](2)) (“Houssein”) which could justify an award of indemnity costs.

For the Claimant, William Birch of counsel submitted that this appeal is fatally flawed because the Master’s order, properly construed, does not have the effect to which the Defendant objects. An order for costs of and occasioned by an amendment can, he submitted, cover items looking backward as well as forward. In the present case Mr Birch accepts, and submits, that the Master’s order does in fact provide for costs which were actually thrown away. So, it will be for detailed assessment to establish which parts of the 9 August letter were in response to the way in which the claim was initially framed, and what advice was obtained for that reason (and which would not have been obtained in response to the claim in any event), and the reasonableness of the sums ascribed to that work, but the sums identified by that process will be payable by the Claimant under the Master’s order.

In support of that submission, Mr Birch pointed out that both parties in this case indicated, at various times, that they understood that an order for costs of the amendment could include items looking backward, that the Part 44 Practice Direction is not prescriptive and that no authority has been produced on the meaning of the words “of and occasioned by”.

If that submission is right, submitted Mr Birch, there is no real issue between the parties and the appeal is founded on a misinterpretation of the Master’s order. He said that his client implicitly accepts, for example, that the order requires payment of a reasonable sum for any aspect of counsel’s advice going only to the question of which Russian judgment could be enforced.

That being so, he submitted that his client at all times has simply taken the reasonable stance that the items in question must go to detailed assessment to establish their relevance as well as the reasonableness of the sums claimed. There was therefore no good reason for the Defendant to object to an order in those terms.

As to ground 1, he reminded me that until comparatively recently there was no duty to give reasons for costs decisions in general. In English v Emery Reimbold and Strick Ltd [2002] 1 WLR 2409, Lord Phillips MR giving the judgment of the Court of Appeal said at [14]:

“Where the reason for an order as to costs is not obvious, the judge should explain why he or she has made the order. The explanation can usually be brief.”

In the present circumstances, Mr Birch submitted that it was sufficient for the Master to state simply that he preferred the submissions of the Claimant. He was confronted with a stark or binary choice between two approaches, much as in Easteye Ltd v Malhotra Property Investments Ltd [2019] Costs LR 2181, where a decision to allow a costs budget in one of the parties’ two rival figures was adjudged a sufficient basis for inferring that the reasons reflected the submissions of the successful party.

As to ground 2, Mr Birch pointed out that his client’s written submissions to the Master on 17 December 2024 did not assert or place reliance on any agreement between the parties. In that respect he said that their position had “crystallised” since the making of the application on 30 September 2024. Since the Master said that he preferred the Claimant’s submissions, clearly he did not make any finding of an agreement.

As to ground 3, Mr Birch relied on his submission as to the meaning of the Master’s order. There was nothing wrong with providing for detailed assessment to establish the relevance of the legal work done (i.e. whether costs had in fact been “thrown away”) and the reasonableness of the sums claimed.

As to ground 4, he submitted that the Master was perfectly entitled to restrict the interim payment to £2,000. Whilst the Defendant was claiming around £30,000, the parties were far, far apart on the figure to be awarded.

As to ground 5, Mr Birch submitted that the Master clearly accepted, and was entitled to accept, the Claimant’s submissions that the application should not have had to be made and also that this dispute delayed and hampered the case management of the underlying litigation. That provided an orthodox basis for an award of indemnity costs. Mr Birch also reminded me of Houssein at [96], where Asplin LJ observed that the width of the Court’s discretion in relation to costs applies all the more in a decision to award costs on the indemnity basis.

In the event that the appeal succeeds to any extent, both parties have submitted that it would be more cost-effective and practical for me to substitute an appropriate order rather than remitting the matter to the Master.

It is well known that judges have a wide discretion in making decisions as to costs and that such decisions are very rarely disturbed on appeal. As in every appeal against the exercise of a discretion, an appellant must show that the judge erred in principle or disregarded a material factor or had regard to an immaterial factor. See, for example, Hislop v Perde [2019] 1 WLR 201 at [67].

That said, in the present case the Master was asked to decide a question of a somewhat technical nature, rather than to exercise a discretion. That is emphasized by the fact that the parties came so close to agreeing the costs order without quite being able to sign it off. This was not a case where, for example, one side had won a partial victory and the Master then had to decide how to reflect that in a costs award. Here the central question was which of two quite similar forms a costs order should take where the Claimant had substituted a new basis of his claim for the basis originally pleaded.

I agree with Ms Breslin that that situation called for what are usually known as “costs thrown away”, as well as what are usually known as “costs of and occasioned by the amendment”.

Unfortunately, the parties’ solicitors did not articulate that distinction during the period in which they failed to agree the order. It seems to me that they must share the responsibility for this. They should have been able to agree that the Defendant should have her reasonable costs of work done on and in relation to the letter of 9 August, including counsel’s advice, if and to the extent that that work would not have been needed if the claim had been framed correctly. That, after all, is what both parties today told me they wanted.

The Claimant’s solicitors essentially sought that outcome but failed to express it properly. The proposal of an order merely for “costs of and occasioned by the amendments” did not make it clear. It may simply have been intended to ensure that a Costs Judge, at a detailed assessment, would check that the costs claimed were for work which would not have been needed if the claim had been framed correctly, as well as assessing the reasonableness of the amounts. However, it left at least a risk that the Costs Judge might decide that those costs (being of a type usually described as “thrown away”) were not costs “of and occasioned by the amendments” because they were backward looking.

The Defendant’s solicitors perceived that risk and sought to negate it by adding clarificatory words to the draft order, but failed to explain clearly why those words were needed. There was a failure to allay the Claimant’s fear that the order would effectively rubber stamp the very large sums which were being claimed for the items in question without a check that they were properly in scope. In particular there was a failure to explain that they were seeking what PD 44 describes as costs thrown away.

The lack of a clear explanation on either side put the Master in a very difficult position. He was effectively offered a choice between rival orders without the difference between them being clearly and accurately articulated. He cannot be criticised for rejecting the extra words put forward by the Defendant when the need for them was less than clear and when the Claimant dismissed them as unnecessary.

With that introduction, I turn to the grounds of appeal.

As to ground 1, I am not persuaded that there was an insufficiency of reasons. Whilst there are some unanswered questions about what the Master thought, he was, as I have said, presented with rival and quite similar versions of the order sought. It seems to me that his choice of the Claimant’s order permits the inference that he accepted the written submissions which the Claimant filed the day before he made the order. The thrust of those submissions was that the recoverability and quantum of the relevant items of costs were a matter for detailed assessment, rather than for specific provision in the order.

That being so, I am also not persuaded by ground 2, that the Master must have made some error in relation to an agreement between the parties. Instead, the question for him was whether the relevant items of costs required specific provision or whether they were matters for detailed assessment.

However, I am somewhat reluctantly persuaded that the lack of clarity in the discussion between the parties led to the error alleged by ground 3, and that ground therefore succeeds.

Paragraph 1.2 of the order made by the Master did not sufficiently provide for what was clearly the appropriate outcome (whether or not the parties at that time agreed it in terms), namely that the Defendant should have her reasonable costs of work done on and in relation to the letter of 9 August, including counsel’s advice, if and to the extent that that work would not have been needed if the claim had been framed correctly.

I have asked myself whether the Master’s order should nevertheless stand, on the basis that the Claimant via counsel has offered a concession that that is what it means, or should mean. Nevertheless, having decided that what was clearly required was an order in the nature of “costs thrown away”, I am unwilling to leave in place an order merely for “costs of and occasioned by the amendments” which could, at least in theory, be misinterpreted at a later date.

The form of order proposed by the Defendant to the Master was still unsatisfactory, because of the inaptitude of the “of and occasioned by” label, but it would at least have guarded against that possible misinterpretation. The better precaution against misinterpretation is to substitute the order which Ms Breslin now agrees is the right one.

I nevertheless am not persuaded by ground 4. The question here is what was a “reasonable sum on account of costs” under CPR 44.2(8).

In Excalibur Ventures LLC v Texas Keystone Inc and others [2015] EWHC 566 (Comm), Clarke LJ said:

In the present case, there was a fundamental dispute about the quantum of the costs sought. The Defendant claimed over £30,000 and, as I have said, the Claimant’s solicitors characterised that sum as “obscene”. It was not possible for the Master, and is not possible for me, to choose between those rival views. It follows that there was and is a prospect that part of any substantial sum paid on account might later have to be recovered. Given the history of this litigation, it would not be in the interests of justice to introduce a potential new issue in the form of an application to recover an overpayment.

In deciding what payment to direct, the Master had a wide discretion. Although I have departed from his decision on the form of the costs order, I have no reason to think that he was not fully aware of the relevant issue that would arise on detailed assessment, i.e. the choice between the large sum sought by the Defendant and the much smaller sum reflected by the Claimant’s proposal to pay £2,000 on account. I therefore have no reason to think that he misdirected himself in any way, and there is no proper basis on which to interfere with his decision to accept the Claimant’s submissions.

As to ground 5, since I have decided that the right costs order was somewhat closer to the draft proposed by the Defendant than to the draft proposed by the Claimant, it follows that the Master’s order for the Defendant to pay the costs of the application, and to do so on the indemnity basis, cannot stand.

In my judgment, the application had to be pursued because of the joint failure of the parties to articulate their positions and to identify the right form of order which could be made by consent. If that had been made clear to the Master, it would have been appropriate for him to make no order as to the costs of the application, and I substitute that order.

In making that decision I bear in mind that the usual starting point is for the costs of an application to amend to be paid by the amending party. However, if the parties had dealt with this matter more effectively, any Defendant’s costs arising from the necessary paper application would have been minimal. The effect of my order is that the Claimant will pay his own costs of the application.

The appeal is therefore allowed to that limited extent.

I will invite the parties to agree an order including a short timetable for brief written submissions (maximum 3 pages) on any consequential matters.