AS v RS

AS v RS

The intended purpose of the rules is to exclude leave applications under section 13 MFPA 1984 from the general 'no order' rule for costs in financial remedy proceedings. The drafting of FPR 28.3 (4) (b) (ii) was in error by failing to repeat the specific exception for section 13 leave applications. The court applies a rectifying construction to resolve the conflict, preferring the exclusion in FPR 2.3 and treating leave applications as not subject to the general rule in FPR 28.3.

Parties
Applicant: A S; Respondent: R S
Jurisdiction
England and Wales
Judgment Date
11 October 2024
Procedural Posture
Application for Leave Under Matrimonial and Family Proceedings Act 1984 / Preliminary Costs Determination Following Leave Application Judgment
Outcome
Preliminary point decided: applications for leave under section 13 MFPA 1984 are excluded from the general 'no order' rule for costs; further submissions on costs to be heard.
Legal Topics
Costs Regime, Statutory Interpretation, Financial Remedy Proceedings, Leave Applications Under MFPA 1984
Family Law Civil Procedure Costs Regime Statutory Interpretation Financial Remedy Proceedings Leave Applications Under MFPA 1984

Case Brief

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Parties

A S

Applicant

R S

Respondent

Procedural Posture

Application for Leave Under Matrimonial and Family Proceedings Act 1984 / Preliminary Costs Determination Following Leave Application Judgment

Legal Issues

  1. 1 Which costs regime applies to applications for leave under section 13 of the Matrimonial and Family Proceedings Act 1984?
  2. 2 Is there a conflict between FPR 2.3 and FPR 28.3 (4) (b) (ii) regarding costs?
  3. 3 Should the court exercise unfettered discretion or follow a specific rule?

Ratio Decidendi

The intended purpose of the rules is to exclude leave applications under section 13 MFPA 1984 from the general 'no order' rule for costs in financial remedy proceedings. The drafting of FPR 28.3 (4) (b) (ii) was in error by failing to repeat the specific exception for section 13 leave applications. The court applies a rectifying construction to resolve the conflict, preferring the exclusion in FPR 2.3 and treating leave applications as not subject to the general rule in FPR 28.3.

Court Disposition

Preliminary point decided: applications for leave under section 13 MFPA 1984 are excluded from the general 'no order' rule for costs; further submissions on costs to be heard.

Orders

  • Further submissions as to costs to be dealt with at subsequent hearing.