England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE PRINCIPAL REGISTRY
FAMILY DIVISION
(MR JUSTICE MOYLAN)

		Royal Courts of Justice Strand, London, WC2A 2LL
		1st March 2012

Lord Justice Thorpe:

1. Mr Grubb in person has very sensibly compromised issues between himself and his wife relating to a costs order made by Moylan J at the conclusion of his judgment determining the wife's claim for ancillary relief. He made a summary assessment of the costs to be paid by Mr Grubb in a big figure, and it seemed to this court last year in November that there was very little substantial material upon which that summary assessment was based. So we granted permission to appeal that aspect of the case, and in order for us to do more precise justice we required by paragraph 2 of our order the filing by the parties of a) the forms H and such other statement of costs as were before Moylan J, and b) detailed bills of each party's costs of the financial remedy proceedings.
2. Thereafter Messrs Payne Hicks Beach, who acted and act for the wife, made a concession. In order to avoid any further hearing in this court they conceded that in place of the summary assessment by Moylan J there should be a conventional assessment of their costs by a costs judge.
3. That was not the end of discussion between the parties. Both Mr Grubb and his former wife took their own counsel and arrived at a conclusion which they thought to be mutually satisfactory; they agreed a figure inclusive of interest of £320,000, which was to be substituted for the figure ordered by Moylan J. That agreement was reached last night; it is a commendable agreement; it is much to the credit of Mr Grubb that he has disposed of these proceedings in their totality in a very realistic way. The agreement extends not just to the dispute as to the costs below but also as to the costs in this court.
4. Now Mr Grubb as a litigant in person this morning invites us to exercise our discretion to order Payne Hicks Beach to do something which is no part of the compromise. He wants us to make an order stood by consent but opposed, an order for the service and filing of the matter identified in paragraphs 2A and B of the order of 2 November. I say at once I have every sympathy with Mr Grubb. To be involved in ancillary relief litigation is a dire prospect for any husband or wife. The level of costs that are charged nowadays in London by specialist solicitors and barristers seems to many, both within and without the profession, to have reached very high levels; certainly unacceptably high levels in comparison with other major capitals in which ancillary relief claims are litigated, admittedly under different systems of justice. But having said that, it seems to me that the application must inevitably be refused, because as a matter of logic the documents can be of no benefit to Mr Grubb in any financial sense. If he were to conceive that his wife had been overcharged there would be absolutely nothing he could do about it because he has made a contract with his wife for the payment of those costs. Of course it would be open, I think, to Mrs Grubb herself to seek an assessment against Payne Hicks Beach, but there is no indication at all that she is herself contemplating such a course or has any reason to believe that she has been overcharged. It seems to me that, whilst there may be misgivings, the misgivings are all on Mr Grubb's part.
5. So it would be quite unprincipled if we were to accede to the application which Mr Grubb so beguilingly advances. We would undoubtedly get ourselves into disfavour and probably rebuked by the Supreme Court if we were to make the order which he invites us to do.
6. So for all those reasons I would simply say we cannot accede to this application, however charmingly it be presented.

Lord Justice Gross:

7. I agree.

Mr Justice Ryder:

8. I also agree.

MR ANELAY: My Lord, may I just mention one thing, respectfully. Your Lordship said at the outset of your judgment that you had granted permission to appeal on the last occasion; in fact what happened is you adjourned …

LORD JUSTICE THORPE: We adjourned…

MR ANELAY: … you gave permission for further argument

LORD JUSTICE THORPE: PTA plus A.

MR ANELAY: That is right, my Lord.

LORD JUSTICE THORPE: Yes.

MR ANELAY: And can I just say for the record that my client has never challenged our bill and has been quite satisfied with it and has been kept informed throughout, and I do appreciate the point that has been made about publicity about another case, and it did not surprise me when this appeared in a letter the other day. I don't know anything about that matter, in any event this is an entirely different partner who has been dealing with it.

LORD JUSTICE THORPE: It is, Mr Anelay, and things have been done very properly.

MR ANELAY: And my Lord can I just say one other thing, and I am not rising to respond to the allegation about the way we have conducted the matter, but I did put in the written document just for the record the extent to which Mr Grubb, this has been his decision, as opposed to everything throughout the whole of this divorce, and that is one of the reasons why the costs have come up to the level that they have, but I don't want to say any more on that.

LORD JUSTICE THORPE: Well thank you very much, Mr Anelay. I mean obviously I inferred that your client had no complaint at all, and although there have been many, many expressions of unease about the costs of litigation in London in ancillary relief, none of that has any bearing on this case or upon those who have responsibility at Payne Hicks Beach for its conduct. Although the figure ordered by Moylan J and the figure agreed today is a big figure, it is, in comparison with some other bills we see, a small figure. So it depends on the way you look at it, but if you look at it from Mr Grubb's point of view it has got to seem a big figure. Anyway thank you all very much for your help.