Harrison v Harrison
6 February 2009
 EWHC 428 (QB),  1 FLR 1434
The case arose from contested ancillary relief proceedings. The wife sought to set aside the final order on grounds of fraud. Her claim was dismissed with costs on the indemnity basis, later agreed at £205,000. The wife was paying those costs over time, and by the time of the application had paid £185,000. There was no indication that she would stop paying, and the outstanding sum was subject to interest at 8 pc. The husband nevertheless applied for wasted costs against the wife's counsel. When the matter came before Mackay J, the husband's costs of the application exceeded £57,700, and the wife's costs were c £85,000.
The following propositions were to be gleaned from the case law, principally Ridehalgh v Horsfield  Ch 205 (CA): (1) the jurisdiction must not be used as a back door means of recovering costs not otherwise recoverable; (2) it should not become a satellite branch of litigation or be disproportionate ;(3) it is essential that the applicant demonstrate a causal link between the conduct and the incurring of the costs; (4) it is generally best left until after trial; (5) the procedure to be adopted should be fair and as simple and summary as fairness permits; (6) the burden is on the applicant to satisfy the court that the order should be made; (7) even if the court is satisfied, there is a discretion to decline to make the order.
The application failed on point (3). There was simply no loss to the husband, in circumstances where his wife would be paying the costs in any event. In any event, the application would fail on point (7). Where the wife was paying the costs due, it was completely disproportionate for the court to entertain a complex and very high cost application for a wasted costs order.