FPR costs are ‘not working’

GW v RW (2003) FAM 18 March Norris v Norris and another appeal [2003] All ER (D) 472 (Jul)

Even though the Court of Appeal has said that FPR rules 2.69B and D are ‘not unworkable’ (by applying CPR rule 44.3 where there is no Calderbank offer and integrating FPR rule 2.69 into it where there is one) it now accepts, in respect of big money cases at least, that all is not well. In GW v RW, Nicholas Mostyn QC sitting as a deputy High Court judge, said that where both parties have made Calderbank offers, rule 2.69B becomes unworkable. Rather than return to older, outdated authorities, he suggested the safer starting point in a high-value divorce case, where the assets exceed the aggregate of the parties’ needs, was that there should be no order as to costs, unless unreasonableness could be demonstrated. Although she thought this approach was ‘cavalier’, the President of the Family Division in Norris agreed ‘with the overall direction of the judgment for the future’. In the meantime, as a matter of principle, the determination of any question of costs in ancillary relief proceedings must be governed by CPR rule 44.3 together with FPR rule 2.69 in its current form, namely 2.69,2.69B and 2.69D. The harmonious integration of these separate codes is in my judgement best achieved by treating CPR rule 44.3 as covering all cases. If in a specific case no Calderbank offer has been written then the judge will apply CPR rule 44.3. In a case in which a Calderbank offer or offers are relied upon then I consider that the judge should apply CPR rule 44.3 notionally inserting into the exercise FPR rule 2.69 in substitution for CPR rule 44.3(4)(c).