Potanina v Potanin
[2024] UKSC 3
AS v RS
6 November 2023
[2023] EWFC 284 (B)
Family Court
Imagine two rules that contradict each other about who pays legal fees. The judge decided one rule had a mistake, so they fixed it. Now, in cases like this one, it's not automatic that nobody pays fees—the judge will decide based on what's fair.
Key Facts
- •Costs dispute arising from a leave application under Section 13 of the Matrimonial and Family Proceedings Act 1984.
- •Conflict between FPR 2.3 (definition of 'financial remedy') and FPR 28.3(4)(b)(ii) (definition of 'financial remedy proceedings') regarding the applicability of the 'no order' costs rule.
- •No previous case law directly addresses this specific point.
- •Judge considered academic texts and commentary, including Rayden and Jackson, At a Glance, Financial Remedies Practice, Jackson's Matrimonial Finance, and the Dictionary of Financial Remedies.
- •Judge also reviewed Bennion, Bailey and Norbury on Statutory Interpretation to address the apparent conflict in the rules.
Legal Principles
The court has an unfettered discretion as to costs (FPR 28.1).
FPR 28.1
The overriding objective (FPR 1.2) informs the exercise of discretion.
FPR 1.2
Definition of 'financial remedy' in FPR 2.3(c) specifically excludes applications under Section 13 of the 1984 Act for permission to apply for a financial remedy.
FPR 2.3(c)
Definition of 'financial remedy proceedings' in FPR 28.3(4)(b)(ii) includes an order under Part 3 of the 1984 Act.
FPR 28.3(4)(b)(ii)
In interpreting potentially conflicting statutory provisions, the court presumes the legislature intends a construction that rectifies drafting errors to give effect to legislative intent (Bennion, Bailey and Norbury on Statutory Interpretation).
Bennion, Bailey and Norbury on Statutory Interpretation
The court can add, omit or substitute words to correct obvious drafting errors, applying the test in Inco Europe Ltd v First Choice Distribution.
Inco Europe Ltd v First Choice Distribution
Outcomes
FPR 28.3(4)(b)(ii) is considered to be in error due to conflict with FPR 2.3(c).
The court applied the principles of statutory interpretation from Bennion and the test from Inco Europe Ltd, concluding that the exclusion of section 13 applications in FPR 2.3(c) reflects the intended legislative purpose. The broader inclusion in FPR 28.3(4)(b)(ii) was deemed an inadvertent error.
Leave applications under Section 13 of the 1984 Act are not subject to the 'no order' costs rule in FPR 28.3.
Based on the rectification of the apparent error in the rules, the court found that the 'clean sheet' approach should apply to costs in leave applications under Section 13.