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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Lambert v Lambert [2002] EWCA Civ 1832 (25 November 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/1832.html Cite as: [2002] EWCA Civ 1832

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(MR JUSTICE CONNELL)

		Royal Courts of Justice Strand London, WC2 Monday, 25th November 2002

1. LORD JUSTICE THORPE: The application in relation to the costs, both below and in this court, is mounted by Mr Mostyn QC in reliance on Family Proceedings Rule 2.69C. He says that the order of this court in favour of his client is more advantageous to her than any of the offers to settle made on either side; that is, paragraph (1)(b) of that rule. That, he says, triggers paragraph (2) of the rule, which says that the court may where it considers just order interest on the whole or part of any sum of money awarded. He also says that it engages rule (4)(a), to the effect that the court may also order her costs on the indemnity basis beginning 28 days after the relevant offer, and engages also paragraph (4)(b), interest on those costs at a rate not exceeding 10 per cent above base rate.
2. The court however exercises a wider discretion, since paragraph 2.69D says that:

"In considering whether it would be unjust, or whether it would be just, to make the orders referred to in rules 2.69B and 2.69C the court must take into account all the circumstances of the case, including ..."

And there then follows in sub-paragraphs (a) to (e) a statutory checklist.

3. We have considered the rival submissions with care, and we reach the conclusion that Mrs Lambert should have her costs in the court below on a standard basis. We believe that that fairly reflects the basic discrepancy between her bill and the bill of the husband. That discrepancy can be sorted out by the costs judge, who will allow to her what is fair without a presumption that what she presents is fair. It will allow him to have regard to those points of detail that have been briefly canvassed at this morning's hearing. It is, in our judgment, a fairer way of dealing with the matter than to embark on any specific disallowance in relation to specific issues, for all the reasons that were advanced by Connell J in his judgment below.
4. However, in relation to the costs of the appeal, the wife should recover on an indemnity basis. There are no corresponding question marks hanging over her bill in relation to the appeal.
5. We reject the submission from Mr Pointer QC that this husband is paying for some shift in the approach of the court. It was perfectly obvious that, once permission had been granted almost a year ago, this husband was on risk in relation both to the fundamental case and also in relation to the argument that Connell J had underprovided for her needs, a ground upon which she succeeded independently in this court.
6. In relation to interest on the costs, the sensible concession made by Mr Mostyn that interest should be restricted to such period after payment of her solicitors' rendered bill is, in our judgment, a sensible concession which allows an order to go. The rate at which Mr Mostyn seeks the application of interest is, in our judgment, although at the top end of modern rates, still an acceptable rate.
7. In relation to the application for permission to appeal, we do not accept that there is any fundamental question that requires consideration by the House of Lords. We regard ourselves as having done little more than attempt to apply to this case the fundamental principles established by their Lordships in the relatively recent decision of White. Accordingly it is for Mr Pointer to petition if he sees fit.
8. If Mr Pointer does petition, then we would put him on terms to file his petition with expedition and to pursue it with expedition. We would be prepared to grant a stay in relation to the payment of the further sum that falls due under this order only until determination of that petition or, in the event of it being granted, the determination of the appeal. But the sum due will carry interest from today's date if his endeavour to challenge the quantum by further appeal fails.
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