Case No: B4/2008/0697
Neutral Citation Number: [2008] EWCA Civ 1600
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM EPSOM COUNTY COURT
(HIS HONOUR JUDGE NATHAN)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Tuesday, 9th December 2008

Before:

LORD JUSTICE THORPE
and
LORD JUSTICE JACKSON

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	ROTHWELL	
Appellant	
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ROTHWELL	

Respondent	

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THE APPELLANT APPEARED IN PERSON, ASSISTED BY A MACKENZIE FRIEND.

Ms D Bhatia (instructed by Messrs Lewis & Dick) appeared on behalf of the Respondent.

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Judgment

Lord Justice Thorpe:  

1.	There were contested ancillary relief proceedings between Mr and Mrs Rothwell, which culminated in a judgment of HHJ Nathan on 22 February 2008.  A notice of appeal by Mr Rothwell was received in this court on 4 April, and on 9 June I directed an oral hearing of the application with appeal to follow if permission was granted.  I stayed further performance of the judge’s oral order.  I added a rider to the effect that the observation of the wife’s solicitors that there should be no further costs involved in proceedings could be achieved by mediation, and accordingly I directed that letters of invitation should be issued to the parties inviting them to resolve outstanding issues within this court’s ADR scheme.  That was a particularly appropriate invitation in this case, since the basis upon which I had directed the oral hearing was that the judge had arguably misunderstood some of the financial information, leading to mathematical error in his quantification of the husband’s overall liabilities.

2.	The parties, having received the court’s invitation, appointed a mediator and a mediation took place on 10 September, resulting in a clear agreement, one of the terms of which was that the proceedings in this court would be dismissed and that there would be a clean break order incorporated in the dismissal application.  Thereafter, things slid off the rails when Mr Rothwell repented of his commitment to the agreement, and there was a period of confusion when the cheque in partial settlement of his mediation agreement responsibility was dishonoured, and then was requested for representation.  The upshot was that on 6 November, during this state of confusion, I directed an oral hearing to show cause why the appeal should not be disposed of in accordance with the mediated agreement.  I further directed that a typed-up version of the mediation contract be lodged with the court.  That was duly done, and each side prepared for a hearing fixed for today, 9 December.

3.	During the stages of preparation, Mr Rothwell sent an email to the wife’s solicitors on Friday last, 5 December, in which he indicated that he was content for the proceedings in this court to be disposed of by a consent order in terms of the mediated agreement.  Accordingly, Ms Bhatia for the wife has submitted a draft for our consideration.  The draft is good as far as it goes, but it is impossible to complete the exercise today since further information is still required to detail the mechanism by which the wife is to receive a pension income of ₤6,000 per annum.  So it is agreed that the order in principle is to go today, disposing of all proceedings in this court, although there can be no perfection of that until a complete draft is submitted by Ms Bhatia for the wife and Mr Wills for the husband.

4.	So the only remaining function for us today has been to decide whether or not to accept Ms Bhatia’s submission that the appellant shall pay the respondent’s costs incurred on and after 10 September.  Ms Bhatia has put forward her application boldly in a sum of ₤6,225 approximately.  However, she has to concede that there would have been professional costs to her client’s account even if there had been no vacillation on Mr Rothwell’s part; and we have no separation out of her paragraph 15 costs between those advanced and those that would have been incurred had there been no vacillation.  Furthermore, Ms Bhatia accepts that the paragraph 24 figure for her briefing is a figure that could not possibly be sustained on any assessment.  There can be no doubt at all that a balance exists between the costs incurred between 10 September and today, and the costs incurred between 4 April and 10 September 2008.  

5.	I add one other comment upon Ms Bhatia’s schedule, namely that the bulk of her submission relates to the period between 5 and 9 December, which are the anticipated costs drawn by the solicitors when they lodged this form.  In relation to that, it can of course be said on Mr Rothwell’s behalf that, having given notification on 5 December of his willingness to stand by the compromise, it would be an injustice if he had to pay for elaborate preparations for a hearing that was no longer contested.

6.	In relation to the costs between 4 April and 10 September, Ms Bhatia says, well, the terms of the agreement of 10 September were that each side should bear their costs, and there may be some force in that.  However, doing the best I can, having regard to the circumstances of each of the parties, including the fact that Mr Rothwell has for long suffered from some degree of ill-health for which he has been receiving regular treatment, and having regard to the turmoil in the financial markets, which has not made the implementation of this agreement any easier, I for my part clearly conclude that the fair order is no order for costs in this court.  So the notice of appeal will be dismissed by consent, on terms that have been agreed, by an order which will be subsequently submitted and perfected, and within that order will be the provision: no order as to costs.  

7.	Before leaving this short point, I would only add by way of generalisation that Mr Rothwell has very wisely made the concession which he signified on 5 December.  As a matter of general law there is no doubt at all that once the parties have arrived at a compromise of litigation, the court will uphold and enforce that compromise, absent some vitiating element; see Marsden v Marsden [1972] Fam 208.  Precisely the same principle should in my judgment apply in the Court of Appeal, if the parties arrive at a contractual compromise of pending appellate proceedings, provided that that contract is not in any way vitiated.

8.	The Court of Appeal ADR scheme has a relatively low take up from family appeals but an encouragingly high success rate; and as a matter of policy it is important that this court should signify that if the parties arrive at a compromise, a clear compromise, within the mediation process, then that compromise will be robustly upheld by this court.

Lord Justice Jackson:  

9.	I agree.  

Order:  Application refused.