Application for ancillary relief - Calderbank offer and counter-offer made - general and wide discretion as to award of costs

Norris v Norris; Haskins v Haskins: CA (Dame Elizabeth Butler-Sloss, President, Lords Justice Thorpe and Mantell): 28 July 2003

In two 'big money' cases where orders for costs had been made after applications for ancillary relief, the court considered the proper approach of the court to the making of Calderbank offers in the light of the CPR and the Family Proceedings Rules 1991 (as amended by the Family Proceedings (Amendment No 2) Rules 1999).

Nicholas Cusworth (instructed by Jacobs Allen Hammond) for Mr Norris; Clare Renton (instructed by Kidd Rapinet) for Mrs Norris; Valentine Le Grice QC and Simon Webster (instructed by Guillaumes, Weybridge) for Mr Haskins; Martin Pointer QC and Jonathan P Swift (instructed by Williams Thompson, Christchurch) for Mrs Haskins.

Held, in the first case refusing the husband permission to appeal and, in the second case, dismissing the husband's appeal, that the harmonious integration of the two statutory codes regulating the award of costs in family financial disputes was best achieved by treating CPR rule 44.3 as covering all cases; that the exercise there undertaken required consideration of all the circumstances, including the parties' respective conduct and success and, under paragraph (4)(c), any offer made; that where the court was considering a Calderbank-type case, the paragraph (4)(c) exercise was better dealt with under the fuller provisions in rules 2.69, 2.69B and 2.69D of the 1991 rules (as substituted); that reading the two sets of rules together, the court had a general and wide discretion to depart from the starting point of 'winner takes all'; (per Dame Elizabeth Butler-Sloss, President) that the difficulties which arose from rule 2.69 urgently required a rethink, and it was time for further amendments to the rules governing awards of costs in ancillary relief cases.