D Culligan v A Culligan (No.2) (Costs and Anonymity) [2025] EWFC 26

[2025] EWFC 26Case No 1652-1920-1218-0539
IN THE FAMILY COURT
Venue SITTING AT THE ROYAL COURTS OF JUSTICE, Royal Courts of Justice, Strand, London, WC2A 2LLDate 26/02/2025
Before
MR JUSTICE MACDONALD
Between
Diane Liza Rosemin-CulliganApplicantAnthony David CulliganRespondent
Ms Marina Faggionato (instructed by Withers) for ApplicantMr Alexander Thorpe KC (instructed by Judge Sykes Frixou) for RespondentCosts and Anonymity determined on the papers
Approved JudgmentThis judgment was handed down remotely at 10.30pm on 26 February 2025 by circulation to the parties or their representatives by e-mail.MR JUSTICE MACDONALD
[1]On 14 January 2025, I handed down judgment in financial remedy proceedings arising from the dissolution of the marriage between the applicant, Diane Liza Rosemin-Culligan (hereafter ‘the wife’) and the respondent, Anthony David Culligan (hereafter ‘the husband’) (Culligan v Culligan [2025] EWFC 1). The wife continues to be represented by Ms Marina Faggionato of counsel and the husband by Mr Alexander Thorpe of King’s Counsel. The issues of costs and the extent to which my substantive judgment requires to be anonymised prior to publication now falls to be determined. The parties agree, and I am satisfied, that it is appropriate and proportionate to deal with those issues on paper. To that end, both Ms Faggionato and Mr Thorpe have provided comprehensive written submissions to the court.[2]The background and the conclusions of the court are set out in detail in my judgment and are not repeated here save in so far as is relevant to the issues that now fall to be determined.[3]Unfortunately, the preparation and dissemination of this judgment has been beset by some confusion. Following the handing down of my substantive judgment, the court indicated it would receive written submissions as to costs and, that if the parties sought to make submissions as to anonymisation, such submissions should accompany any written submissions on costs. The wife provided written submissions as to costs and written submissions as to anonymisation. Thereafter, the husband sought a hearing to deal with costs and anonymisation and the court acceded to that request. Steps were put in train to identify a date. Subsequently, the husband then changed his mind, and on 31 January 2025 written submissions were lodged on his behalf as to anonymisation and costs. The husband also sought permission to appeal, which application was refused by way of a separate judgment on 5 February 2025.[4]In the foregoing circumstances, on 4 February 2025 I directed that the wife’s reply to the husband’s written submissions as to costs and anonymisation be provided in writing. In the absence that reply having been provided some ten days later, I proceeded to complete my judgment and handed it down electronically. Following receipt of the judgment, Ms Faggionato referred the court back its direction for a reply in writing and provided that written reply. In circumstances where I had to accept that my direction of 4 February 2025 was incomplete, in that it had failed to make clear the date by which Ms Faggionato was to submit her reply on behalf of the wife, I agreed to reconsider my decisions on costs and anonymity. It is well established that prior to the final order giving effect to the court’s decision being sealed by the court, the court is able to reconsider that decision (see In the matter of L and B (Children) [2013] UKSC 8 confirming there is jurisdiction for the court to change its mind, and by implication for the court to review its decision, up until the order is drawn up and perfected by being sealed). As at the date of receipt of the reply provided by Ms Faggionato, it remained the position that no draft order had been produced by the parties for approval by the court, whether incorporating the decision set out in the substantive judgment or the court’s decision as to costs and anonymisation.[5]In the circumstances, is important to note that this judgment is a reconsideration of the decision contained in the judgment as originally handed down, taking into account the additional points made by Ms Faggionato in her written reply on behalf of the wife. The original decision of the court, in summary, was that the wife should pay a contribution towards the husband’s cost in the sum of £84,450 and that my substantive judgment and this judgment would be published without anonymisation. I make clear that, in the context of the unfortunate confusion that arose as outlined above, I have reconsidered those decisions in full. I have however, for the reasons I now set out, reached the same conclusion.

COSTS

[6]The wife’s costs in this case are £963,521 and the husband’s costs are £422,628. The wife accepts she cannot rely on rely on FPR 2010 r.28.3(7)(b) to found an order for costs and relies on what she contends has been the husband’s poor litigation conduct as justifying a contribution to her legal costs. The following matters are prayed in aid by the wife: i) The husband failed to comply in full and on time with any of the substantive orders made in these proceedings, continuing the pattern of litigation misconduct that began with the filing of his Form E. ii) The husband failed to respond properly and in a timely fashion to questionnaires and schedules of deficiency, which the husband conceded was “not good enough”. iii) The husband failed to disclose both assets and material facts during the course of proceedings, and in particular: a) The December 2021 Term Sheet between SETL and Colendi, valuing SETL at £41.5m, the husband putting his interest in SETL at £0 in his Form E. b) The agreement in principle to proceed with the Colendi transaction. c) The incorporation of Colendi SETL Nominees Ltd. d) His JP Morgan pension, valued at £1.1M when disclosed, the husband conceding that he “could have done better” in this regard. e) His loan to SETL, valued at £58,707 when his Form E asserted no loans to SETL had been made. f) His Charles Stanley Bank Accounts. g) Cryptocurrency comprising 8.91 BCH, 269.43 USDC and 5.09 BTC (worth £400,705). iv) The husband delayed in providing details of his tax affairs and thereafter the husband’s delay in dealing promptly with his tax affairs, notwithstanding the advice of the SJE that there was a need for prompt action, in respect of which the husband accepted he could have dealt with them “more quickly”. v) The husband erroneously disputed the fees of the SJE, the husband having accepted that he had been wrong on this issue and that additional time and costs had been incurred as a result. vi) The husband failed, in accordance with the order of Cusworth J, to provide to the wife all of the correspondence passing between the husband and his tax advisers. vii) The costs incurred in dealing with the cumulative effect of the husband’s repeated omissions with respect to administrative matters across the litigation, putting the wife to the expense of having her solicitors write repeatedly to remedy the husband’s defaults and clarify the position with respect to disclosure. viii) The husband failed to negotiate reasonably by refusing the wife’s repeated proposals for mediation and attaching unrealistic conditions to a settlement meeting.[7]The husband submits that it is the wife who should pay his costs on an indemnity basis and an order that she pays 50% of the difference between her costs and the husband’s costs, with a set off for £13,923.41 to ‘make good’ the costs orders already made against the husband for his lackadaisical disclosure. The husband relies on the following matters: i) The complaints of non-disclosure made by the wife against the husband are obviously and demonstrably hollow. The wife did not allege hidden assets and made this clear in her evidence, as she did that she was not alleging dishonesty. The court did not find that the husband was culpable of material non-disclosure and this is not a case of material non-disclosure. ii) The wife lied about her knowledge of the husband’s US citizenship in order to avoid sharing a liability arising on the sale of assets that funded both of her projects for the renovation of the former matrimonial home and ELSA. iii) The husband could not finalise the position in respect of US tax in a timely fashion because the wife would not release funds to him and would not co-operate for the purposes of s.6013(g) of the US tax code. iv) The wife’s offer was not credible or capable of being accepted and was predicated on a dishonest construct whereby the deferred consideration and the consultancy agreement with respect to ELSA were off the balance sheet. By contrast, the husband’s offer encouraged co-operation and fair sharing. v) The wife’s offer of Non-Court Mediation was designed to mask her failure to negotiate. vi) The wife was guilty of non-disclosure with respect to the negotiations of the sale of ELSA and failed to provide relevant documents despite being provided with an opportunity to do so by the court. vii) The wife was found by the court to have engaged in a “dishonest scheme” to hide the true consideration for ELSA that, by keeping the deferred consideration and the consultancy agreement in respect of ELSA off the balance sheet, disenfranchised the family of £2.1M and sought to hide a further £1.6M from the balance sheet as post separation income. Her decision to structure that deal as income and not capital demonstrated that the wife preferred HMRC to get £1M in additional tax rather than share the proceeds with her husband from a project that she admitted was a joint project from the outset. viii) The wife went “nuclear” in respect of her allegation of conduct pursuant to s.23(1)(g) of the Matrimonial Causes Act 1973 (hereafter ‘the 1973 Act’) in circumstances where the court found that the allegations relied on by the wife as constituting conduct which it would be inequitable for the court to ignore came nowhere near to meeting the high threshold applicable. ix) The wife’s litigation conduct takes the case out of the norm in a way which justifies an order for indemnity costs, the wife’s behaviour during the litigation being capable of being categorised as disgraceful, or deserving of moral condemnation. x) It was not possible to negotiate, nor for the court to undertake the exercise of computation, before the wife’s attempt to hide the true consideration for ELSA by keeping the deferred consideration and the consultancy agreement in respect of ELSA off the balance sheet, had been investigated and determined by the court.[8]By her reply, on the question of costs the wife relies on the following matters as set out in Ms Faggionato’s written document: i) The wife maintains her assertion the husband was guilty of litigation misconduct and, the court having found that litigation misconduct, a costs order should be made in the wife’s favour. ii) The wife was not guilty of litigation misconduct. iii) The wife did not fail to negotiate reasonably. iv) The court did not make a conduct finding against the wife in respect of the ELSA transaction.[9]The law with respect to costs in financial proceedings is well settled. FPR 2010 r.28.3 provides as follows with respect to the general rule as to costs in financial remedy proceedings, and the exceptions to that general rule:
“Costs in financial remedy proceedings (1) This rule applies in relation to financial remedy proceedings (2) Rule 44.2(1), (4) and (5) of the CPR do not apply to financial remedy proceedings. (3) Rules 44.2(6) to (8) and 44.12 of the CPR apply to an order made under this rule as they apply to an order made under rule 44.3 of the CPR. (4) In this rule – (a) ‘costs’ has the same meaning as in rule 44.1(1)(c) of the CPR; and (b) ‘financial remedy proceedings’ means proceedings for – (i) a financial order except an order for maintenance pending suit, an order for maintenance pending outcome of proceedings, an interim periodical payments order, an order for payment in respect of legal services or any other form of interim order for the purposes of rule 9.7(1)(a), (b), (c) and (e); (ii) an order under Part 3 of the 1984 Act; (iii) an order under Schedule 7 to the 2004 Act; (iv) an order under section 10(2) of the 1973 Act; (v) an order under section 48(2) of the 2004 Act. (5) Subject to paragraph (6), the general rule in financial remedy proceedings is that the court will not make an order requiring one party to pay the costs of another party. (6) The court may make an order requiring one party to pay the costs of another party at any stage of the proceedings where it considers it appropriate to do so because of the conduct of a party in relation to the proceedings (whether before or during them). (7) In deciding what order (if any) to make under paragraph (6), the court must have regard to – (a) any failure by a party to comply with these rules, any order of the court or any practice direction which the court considers relevant; (b) any open offer to settle made by a party; (c) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue; (d) the manner in which a party has pursued or responded to the application or a particular allegation or issue; (e) any other aspect of a party's conduct in relation to proceedings which the court considers relevant; and (f) the financial effect on the parties of any costs order.”
[10]FPR 2010 PD28 paragraph 4.4 states as follows with respect to the application of r.28.3 with respect to the question of conduct:
“4.4 In considering the conduct of the parties for the purposes of rule 28.3(6) and (7) (including any open offers to settle), the court will have regard to the obligation of the parties to help the court to further the overriding objective (see rules 1.1 and 1.3) and will take into account the nature, importance and complexity of the issues in the case. This may be of particular significance in applications for variation orders and interim variation orders or other cases where there is a risk of the costs becoming disproportionate to the amounts in dispute. The court will take a broad view of conduct for the purposes of this rule and will generally conclude that to refuse openly to negotiate reasonably and responsibly will amount to conduct in respect of which the court will consider making an order for costs. This includes in a ‘needs’ case where the applicant litigates unreasonably resulting in the costs incurred by each party becoming disproportionate to the award made by the court. Where an order for costs is made at an interim stage the court will not usually allow any resulting liability to be reckoned as a debt in the computation of the assets.”
[11]Finally, with respect to the orders for costs it is open to a court to make in financial remedy proceedings, whilst FPR 2010 r.28.3(2) disapplies CPR rr.44.2(1), (4) and (5), FPR 2010 r.28.3(3) mandates that CPR rr.44.2 (6) to (8) continue to apply. CPR r.44(6) states that the orders as to costs that it is open to the court to make are that a party must pay: i) A proportion of the other party’s costs; ii) A stated amount in respect of the other party’s costs; iii) Costs from or until a certain date only; iv) Costs incurred before proceedings have begun; v) Costs relating to particular steps taken in the proceedings; vi) Costs relating only to a distinct part of the proceedings; and vii) Interest on costs from or until a certain date, including a date before judgment.[12]Having considered carefully the submissions of the parties as to costs, I am satisfied that the wife should pay to the husband a proportion of his costs in the sum of £84,540. My reasons for so deciding are as follows.[13]The issues before the court were narrow and the parties were in agreement that the matrimonial assets should be divided in a broadly equal fashion and advanced that position in their respective open offers. That is the position that the court endorsed in the context of a marriage lasting some forty years, albeit that the court differed from both parties on the precise structure of that broadly equal distribution. Both of the open offers made by the parties in 2024 fell outside the bracket of what the court has determined is the fair outcome in this case. In the circumstances, neither party can rely on FPR 2010 r.28.3(7)(b) to found an order for costs in their favour.[14]The court was critical of both parties with respect to the manner in which they approached this litigation and gave evidence. At paragraph [56] and [57] of my substantive judgment I concluded as follows with respect to the wife:
“56. The wife was not an impressive witness. She frequently dissembled and on several occasions she gave the impression of having exaggerated matters for forensic effect. In particular, her claim that she was not aware of the husband’s status as a US citizen, made, I am satisfied, in an attempt to bolster the assertion that the husband had somehow chosen to disguise his US citizenship in order to gain a forensic advantage and/or that she should not be responsible for the husband’s US tax liabilities. Likewise, the wife’s assertion that the husband stopped her using the Revolut card, when the evidence suggests simply one incidence of technical difficulties. For the reasons I shall come to, I am satisfied that the matters which the wife contends amount to conduct for the purposes of s.25(1)(g) are nothing of the sort. 57. The wife also presented as extremely vague on matters of evidence on which she might have been expected to have a clear recall. In particular the circumstances by which, and the basis on which, she sold ELSA to YMK Holdings LLC and her reasons for her taking some of the decisions in relation to that deal. For example, her decision to take a consultancy fee totalling £3M over four years, notwithstanding that decision made the deal for the sale of ELSA much less tax efficient than it needed to be. Likewise, her decision to pay Mr Snyder a consultancy fee of £1.1M for a deal he was under a fiduciary duty to advance in any event. Indeed, there were a number of occasions where the evidence of the wife gave the impression of her having conducted herself so as almost wilfully to make the parties position less advantageous. Again, by way of example, her insistence that she would not co-operate with respect to mitigating the US tax position with the result that the tax on any transfer of former matrimonial home would be 0% rather than 23.8%. In the circumstances, I have treated the wife’s evidence with caution where it is not corroborated by other material.”
[15]At paragraph 58, I concluded as follows with respect to the evidence given to the court by the husband:
“58. The husband was likewise a less than impressive witness. He too regularly dissembled in response to questions put to him in cross-examination. There were a number of occasions, particularly in relation to the sale of SETL Limited to Colendi, where the husband’s assertions did not survive contact with the points put to him by Ms Faggionato. For example, his assertion that Colendi SETL Holdings was established to hold the Colendi shares given to the husband and the other SETL shareholders because Colendi wanted a clean shareholder register, notwithstanding the fact there are multiple small shareholders listed on the Colendi register. The husband also presented as someone who had struggled to engage with the proceedings, giving the impression of being regularly detached from, or overwhelmed by, the process. For example, notwithstanding the approach of the final hearing the husband appeared to have taken very few steps indeed to establish his US tax liability. This resulted in the husband, through Mr Thorpe, pressing this court to deliver judgment in very short order ahead of a contended for deadline to submit his US tax returns. By his own admission, the husband’s first replies to the wife’s Questionnaire were “not good enough”, that “he could have done better on the pension” and that he could have dealt with his US tax affairs “more quickly”
. The husband seemed to have little insight into the impact this approach would have had on costs. In the foregoing context, I have likewise treated the husband’s evidence with caution where it is not corroborated by other material.”[16]Whilst both parties are, in the foregoing context, the subject of justified criticism for the way in which they have each conducted themselves in this case, I am satisfied that their positions are materially different to a degree that sounds in the question of costs.[17]As I made clear in the judgment, the husband cannot escape criticism for his approach to this litigation. As he himself acknowledged, his first replies to the wife’s Questionnaire were “not good enough”, that “he could have done better on the pension” and that he could have dealt with his US tax affairs “more quickly”. The husband seemed to have little insight into the impact this approach would have had on costs. However, as the wife confirmed in cross-examination, she did not seek to assert that the husband had “a hidden pot of gold” such that there existed in this case assets that remained hidden from the court as at the date of the final hearing. The wife further confirmed in oral evidence that she was not contending that the husband had acted in a dishonest manner. In the circumstances, I found that:
“99. With respect to the allegations of non-disclosure and wider litigation misconduct relied on by the wife, I am satisfied that it is appropriate to deal with those matters when the court comes to deal with costs. As I have noted, this is not a case in which the wife contends that there exist assets hidden from the court as at the date of the final hearing. In the circumstances, I am satisfied that the matters complained of constitute delayed or late disclosure, which may sound in increased costs, rather than frank non-disclosure of assets leading to a risk that the court’s distributive exercise will not reflect a fair outcome because some matrimonial assets remain hidden.”
[18]By contrast, three significant matters concerning the wife also inform the court’s view as to costs. First, as the court found, the wife’s claim that she was not aware of the husband’s status as a US citizen was made in an attempt to bolster the assertion that the husband had somehow chosen to disguise his US citizenship in order to gain a forensic advantage and/or that she should not be responsible for the husband’s US tax liabilities. In this regard the court found as follows:
“56. ... In particular, her claim that she was not aware of the husband’s status as a US citizen, made, I am satisfied, in an attempt to bolster the assertion that the husband had somehow chosen to disguise his US citizenship in order to gain a forensic advantage and/or that she should not be responsible for the husband’s US tax liabilities.”
And “78. The wife’s case with respect to the US tax liability appeared to be that the husband had somehow chosen to disguise his US citizenship in order to gain a forensic advantage and/or that she should not be responsible for the husband’s US tax liabilities as they are consequent solely upon that citizenship. I have found that the wife was aware that the husband held US nationality at least from the point at which the husband started to enter the US with her using his US passport.”

And

[19]Second, whilst Ms Faggionato submits that the court did not make a conduct finding against the wife in respect of the ELSA transaction, the court found that the wife created a construct whereby the deferred consideration and the consultancy agreement with respect to ELSA were kept off the balance sheet. In this regard the court held as follows:
“75. With respect to this issue, the ultimate question for the court is what is the effect of the ELSA transaction. In combination, the SPA and the consultancy agreement provide for the sale of ELSA in return for a sum of £5.96M, of which £750,000 is deferred, and payment to the wife of the consultancy for £750,000 over each of the following four years, totalling £3M. In these circumstances, and set within the context of the matters set out above taking place at the time the financial remedy proceedings were ongoing, I am satisfied that the effect of the transaction was to, and was likely intended to, defer an additional £3M of the total consideration for the sale of ELSA to YMK Holdings LLC. Within this context, that total consultancy fee, net of tax, falls to be added to the wife’s side of the asset schedule in the sum of £1.6M.”
[20]Third, the wife ran a case in respect of conduct pursuant to s.25(1)(g) of the 1973 Act which the court was satisfied was entirely without merit. In this regard the court found as follows:
“96. In reaching my conclusion on a fair distribution, I am satisfied it would not be inequitable to ignore the matters of conduct pleaded by the wife pursuant to s.25(1)(g) of the 1973 Act. A significant portion of the final hearing was taken up with evidence that came, broadly, under the heading of ‘conduct’. This was unfortunate in circumstances where the allegations relied on by the wife as constituting conduct which it would be inequitable for the court to ignore came nowhere near meeting the high threshold applicable. It was likewise unfortunate where the assertions of non-disclosure and litigation conduct are plainly primarily relevant to the question of costs given the wife confirmed in oral evidence that she is not contending that there exist in this case assets that remain hidden from the court as at the date of the final hearing. 97. The matters formally pleaded by the wife as conduct for the purposes of s.25(1)(g) do not withstand scrutiny in that context when the high threshold applicable under s.25(1)(g) is applied to them. Whilst I am certain that it was unpleasant and worrying, the husband’s sudden departure from the former matrimonial home does not constitute conduct which it would be inequitable for the court to ignore. If it did, then such pleading would be possible in almost all financial remedies cases. The breakdown of a marriage is difficult and emotional. There are, however, no pleaded incidences of emotional abuse or threatening behaviour by the husband. The text messages contained in the bundle show civilised discussions between the partes in late 2021 and early 2022 regarding the renovation of the former matrimonial home. The parties exchanged civil greetings as recently as the husband’s birthday in March 2024. As I have further noted, there is no medical evidence before the court establishing that the wife suffers from PTSD. Likewise, I am not satisfied that the husband’s conduct of his finances in what the wife contends was a “secretive and unilateral” manner constitutes conduct that it would be inequitable to ignore for the purposes of s.25(1)(g) having regard to the high threshold applicable. 98. There is also, I am satisfied, no cogent evidence that the husband exercised financial control over the wife to an extent that it would be inequitable to ignore. There is no evidential basis for concluding that the husband was financially controlling or coercive. The issue with the Revolut account was clarified in oral evidence and the wife conceded, as demonstrated by the text messages, that the difficulty was a technical one that the husband helped to resolve, following which the wife thanked him. The husband had acquiesced in the parties spending £2.1M on the renovation of the former matrimonial home and the injection of £2.6M into ELSA, in respect of which the wife retained control to the extent she sold it on her own terms, in addition to remaining in occupation of the former matrimonial home. Having regard to the totality of the circumstances summarised in this judgment, it is difficult to see how the allegation of financially controlling and coercive behaviour ever came to be made under s.25(1)(g). Indeed, it is only really explicable as a wholly inappropriate make weight. Finally, the evidence does not bear out the allegation that the husband threatened to withhold funding from ELSA. It is plain on the evidence that at the relevant time the finite and reducing matrimonial finances were not robust enough to continue funding a loss making business. It was perhaps not surprising that the wife retreated in cross-examination to placing the responsibility for making the allegation on her lawyers and asserting that the husband had simply been “passively aggressive” in discussions regarding the continued funding of ELSA.”
[21]In HD v WB [2023] EWFC 2, in a case in which he held it was reasonable and proportionate to invade a needs based award the court had made, Peel J noted that a party cannot be insulated from the costs of litigation where such costs are justified. I am satisfied that the three matters in respect of the wife justify a costs order against her.[22]The wife’s assertion that the husband had somehow chosen to disguise his US citizenship in order to gain a forensic advantage and/or that she should not be responsible for the husband’s US tax liabilities was transparently unsupportable for the reasons explained in the judgment. Further, and in any event, there was never a realistic prospect that the wife was going to avoid having to share the US tax liability. Even if the wife had, contrary to the finding of the court, not known of the husband’s US citizenship, that would not have changed the fact of those liabilities which arose from the disposal of matrimonial assets during the course of the marriage and for the purpose of funding the creation of other matrimonial assets. The wife’s position led to this issue having to be ventilated at the final hearing, taking up time with evidence that dealt with that issue. It is also reasonable to surmise that it reduced the chances of a negotiated settlement.[23]The wife’s approach to the portrayal of the ELSA deal, whereby the wife was found by the court to have hidden the true consideration for ELSA by keeping the deferred consideration and the consultancy agreement in respect of ELSA off the balance sheet hid a further £1.6M from the balance sheet as post separation income. The court was further satisfied that, in taking this course, the wife’s decision to structure that deal as income and not capital diverted some £1M to HMRC from a project the wife conceded was a joint one from the outset. Whilst Ms Faggionato prays in aid in her written reply on behalf of the wife the fact that the wife did not “hide” the consultancy agreement and did not “hide” the sums she would be paid in the coming years pursuant to the agreement, that is nothing to the point. By choosing to adopt before the court the characterisation that she did, the wife hid the true consideration for ELSA by keeping the deferred consideration and the consultancy agreement in respect of ELSA off the balance sheet.[24]Again, the wife’s position led to this issue having to be ventilated at the final hearing, taking up time with evidence that dealt with that issue. Again, in circumstances where the wife sought to portray this asset as income, it is difficult to see how the matter could have been fairly and accurately negotiated between the parties. In addition, I am satisfied that the wife’s conduct in this regard must be reflected in costs as the means available to the court to deprecate the approach taken by the wife in seeking to disguise assets as future income.[25]Finally, the wife’s case in respect of conduct pursuant to s.25(1)(g) of the 1973 Act which the court was satisfied was entirely without merit, had the effect of increasing the costs of the proceedings. The husband was required to respond to those allegations prior to the final hearing. As noted in the substantive judgment, in circumstances where conduct continued to be pursued by the wife with full vigour at the final hearing, a significant portion of the final hearing was taken up with evidence that dealt with that issue. It is again also reasonable to surmise that it reduced the chances of a negotiated settlement.[26]In the circumstances, I am satisfied that the wife must make a contribution to the husband’s costs to mark the matters set out above and their consequences for the litigation. Within this context, the assessment of the appropriate quantum of costs is a difficult exercise. Sending the matter off for a detailed costs assessment would result in a potentially more accurate answer to the question of what unnecessary costs were incurred as a result of the matters I have covered above, but it would also increase the expense of these already expensive proceedings. Dealing with the question of costs on a summary basis on the information available will avoid the further costs associated with detailed assessment and will bring the matter to a conclusion, but it will also require a broader assessment of the appropriate figure.[27]As between these two options, I am satisfied that the better approach in the circumstances is to assess costs summarily. Doing the best I can, I am satisfied that, taking into account the foregoing matters, the husband should recover from the wife 20% of his costs, amounting to the sum of £84,540. This costs award reflects both the additional time and expense consequent upon the matters set out above and the court’s condemnation of the approach taken by the wife in respect to those matters. The sum I have arrived at summarily is capable of being paid by the wife from the liquid capital assets retained by the wife in her bank accounts.[28]I am satisfied, on balance, that the costs order against the wife does not require further adjustment to account for the matters of criticism that the court has levelled at the husband given my conclusions regarding the nature and extent of that default. Whilst Ms Faggionato reiterates at paragraph 33 of her written reply on behalf of the wife the points of criticism levelled at the husband, I am not satisfied that these matters justify any reduction in the quantum of the costs order I have made in the husband’s favour in circumstances where the court found that “the matters complained of constitute delayed or late disclosure, which may sound in increased costs, rather than frank non-disclosure of assets leading to a risk that the court’s distributive exercise will not reflect a fair outcome because some matrimonial assets remain hidden” (emphasis added).[29]The costs order I have made in favour of the husband will, however, need to be subject to an adjustment that will be required to reflect the fact that, in respect of costs orders already made within the proceedings against the husband, as detailed in my substantive judgment, those costs were paid from pre-divided funds, meaning that the wife has contributed 50% of the sums that she has already received in costs orders paid. This requirement to ‘make good’ those costs orders will need to be done with respect to all of the costs orders made against the husband. There is no justification for ring fencing in this regard the costs order made by Cusworth J.

ANONYMITY

[30]The wife seeks the anonymisation of the substantive judgment prior to publication. The matters she seeks to be anonymised are the identity of the parties, the country in which the parties resided early in their marriage and all of the matrimonial assets, including the parties’ respective companies. On the wife’s behalf, Ms Faggionato submits that: i) The matter was heard in private. No members of the press attended the court hearing. No Transparency Order has been made. ii) The fact of the parties’ dispute as to post-divorce finances is neither in the public domain nor of legitimate interest to the public. iii) Matters relating to third parties, both individuals and companies, have been dealt with by the court without hearing from those third parties. iv) There is no good reason to derogate from the expectation recorded in the draft rubric included at Annex IV of the Transparency Pilot that the parties or their addresses should be identified in any reports.[31]The husband opposes anonymisation. On his behalf, Mr Thorpe submits as follows with respect to this issue: i) This case does not fall within the scope of s.12 of the Administration of Justice Act 1960. ii) The presumption is open justice. The justification for anonymisation must be found as necessary having conducted a focussed balancing exercise between the principle of open justice and the competing right argued for. iii) In order to justify anonymisation, the court must find on the basis of cogent evidence that it is necessary and proportionate to enable justice to be done; particularly with regard to the specific rights that are said to be at stake. iv) No third party was impugned in the judgment. YMK Holdings LLC was perfectly entitled to take advantage of the wife’s intent to worsen the parties’ financial position by structuring the deal in the way that she did. v) Where a court makes a finding of conduct against a party, as it has done in this case to the effect that, by keeping the deferred consideration and the consultancy agreement in respect of ELSA off the balance sheet, disenfranchised the family of £2.1M and sought to hide a further £1.6M from the balance sheet as post separation income, there is all the more reason for the judgment not to be anonymised. The opprobrium that flows from her conduct is appropriate to the seriousness of that conduct and open justice requires that it should not be covered up under an unjustified application for anonymity. vi) The wife has made serious allegations of conduct and coercive control against the husband that were found not to be credible on the evidence. vii) The wife’s reasons for seeking anonymisation fail to address the appropriate hurdles as defined by the statute and jurisprudence and instead descents into the very generalities that the jurisprudence warns against.[32]By her written reply, through Ms Faggionato the wife makes the following additional points regarding anonymisation: i) Publication should not be wielded as retribution or a punitive weapon and to do so is a misuse of the court process. ii) The question of how the judgment should be published should be approached in accordance with the provisions of the ‘Transparency Pilot’. iii) A survey of forty-four cases heard in the Family Division or Family Court and published by The National Archive in November 2024 revealed only three cases in which the parties were named, none of which were financial remedy cases. Of thirty eight cases heard in the Family Division or Family Court and published by The National Archive in December 2024, one financial remedy case was not anonymised, in circumstances where there had been extensive press coverage.[33]The Transparency Pilot, and the Guidance of the President of the Family Division dated 11 December 2023, deal with a reporting pilot governing the press reporting of financial remedy proceedings. It is not concerned specifically with the anonymisation of judgments. Rather, the guidance deals with listing of financial remedy cases in the context of the pilot (including the requirement for the parties’ names to appear on the list), attendance of reporters, the making of transparency orders and the provision of documents to the press. Further, and not highlighted in the wife’s reply, paragraph 28 of the President’s Guidance provides as follows:
“Power of the court to depart from these principles 28. It is open to a judge in any particular case to depart from this guidance to the extent considered appropriate, in accordance with the law and the particular circumstances of the case.”
[34]The law concerning anonymisation of judgments in financial remedy proceedings continues to be the subject of some debate amongst practitioners and commentators. However, the court must apply the law. Whilst not technically bound by the decisions of other High Court judges, this court should generally follow a decision of a court of co-ordinate jurisdiction unless there is a powerful reason for not doing so and, where faced with a point on which there are two previous inconsistent decisions from judges of co-ordinate jurisdiction, the second of those decisions should be followed in the absence of cogent reasons to the contrary (see Willers v Joyce and another (No 2) [2016] UKSC 44, [2018] AC 843 at [9] and Patel v Secretary of State for the Home Department [2013] 1 WLR 63 at [59]) . In that context, I consider the approach set out by Mostyn J in Xanthopoulos v Rakshina [2022] EWFC 30 and Re PP (A Child: Anonymisation) [2023] EWHC 330 (Fam) to be persuasive when read in the context of the long line of authority reviewed by Mostyn J in Xanthopoulos v Rakshina.[35]In Xanthopoulos v Rakshina [2022] EWFC 30, having undertaken his Herculean exegesis of the relevant law and procedure, Mostyn J held as follows:
“121. Therefore it follows that anonymisation can only be imposed by the court making a specific anonymity order in the individual case. Such an order can only lawfully be made following the carrying out of the ultimate balancing test referred to by Lord Steyn in Re S. It cannot be made casually or off-the-cuff, and it certainly cannot be made systematically by a rubric. On the contrary, the default condition or starting point should be open justice, and open justice means that litigants should be named in any judgment, even if it is painful and humiliating for them, as Lord Atkinson recognised in Scott v Scott.”
[36]A little earlier in his judgment in Xanthopoulos v Rakshina,Mostyn J set out the guidelines for the exercise of the power to impose anonymisation contained in H v News Group Newspapers Ltd [2011] EWCA Civ 42, [2011] 1 WLR 1645:
“104. Guidelines for the exercise of this power were comprehensively stated in a codified form by Lord Neuberger MR in H v News Group Newspapers Ltd [2011] EWCA Civ 42, [2011] 1 WLR 1645 at [21]: ‘In a case such as this, where the protection sought by the claimant is an anonymity order or other restraint on publication of details of a case which are normally in the public domain, certain principles were identified by the Judge, and which, together with principles contained in valuable written observations to which I have referred, I would summarise as follows: (1) The general rule is that the names of the parties to an action are included in orders and judgments of the court. (2) There is no general exception for cases where private matters are in issue. (3) An order for anonymity or any other order restraining the publication of the normally reportable details of a case is a derogation from the principle of open justice and an interference with the Article 10 rights of the public at large. (4) Accordingly, where the court is asked to make any such order, it should only do so after closely scrutinising the application, and considering whether a degree of restraint on publication is necessary, and, if it is, whether there is any less restrictive or more acceptable alternative than that which is sought. (5) Where the court is asked to restrain the publication of the names of the parties and/or the subject matter of the claim, on the ground that such restraint is necessary under Article 8, the question is whether there is sufficient general, public interest in publishing a report of the proceedings which identifies a party and/or the normally reportable details to justify any resulting curtailment of his right and his family's right to respect for their private and family life. (6) On any such application, no special treatment should be accorded to public figures or celebrities: in principle, they are entitled to the same protection as others, no more and no less. (7) An order for anonymity or for reporting restrictions should not be made simply because the parties consent: parties cannot waive the rights of the public. (8) An anonymity order or any other order restraining publication made by a Judge at an interlocutory stage of an injunction application does not last for the duration of the proceedings but must be reviewed at the return date. (9) Whether or not an anonymity order or an order restraining publication of normally reportable details is made, then, at least where a judgment is or would normally be given, a publicly available judgment should normally be given, and a copy of the consequential court order should also be publicly available, although some editing of the judgment or order may be necessary. (10) Notice of any hearing should be given to the defendant unless there is a good reason not to do so, in which case the court should be told of the absence of notice and the reason for it, and should be satisfied that the reason is a good one.’” (1) The general rule is that the names of the parties to an action are included in orders and judgments of the court. (2) There is no general exception for cases where private matters are in issue. (3) An order for anonymity or any other order restraining the publication of the normally reportable details of a case is a derogation from the principle of open justice and an interference with the Article 10 rights of the public at large. (4) Accordingly, where the court is asked to make any such order, it should only do so after closely scrutinising the application, and considering whether a degree of restraint on publication is necessary, and, if it is, whether there is any less restrictive or more acceptable alternative than that which is sought. (5) Where the court is asked to restrain the publication of the names of the parties and/or the subject matter of the claim, on the ground that such restraint is necessary under Article 8, the question is whether there is sufficient general, public interest in publishing a report of the proceedings which identifies a party and/or the normally reportable details to justify any resulting curtailment of his right and his family's right to respect for their private and family life. (6) On any such application, no special treatment should be accorded to public figures or celebrities: in principle, they are entitled to the same protection as others, no more and no less. (7) An order for anonymity or for reporting restrictions should not be made simply because the parties consent: parties cannot waive the rights of the public. (8) An anonymity order or any other order restraining publication made by a Judge at an interlocutory stage of an injunction application does not last for the duration of the proceedings but must be reviewed at the return date. (9) Whether or not an anonymity order or an order restraining publication of normally reportable details is made, then, at least where a judgment is or would normally be given, a publicly available judgment should normally be given, and a copy of the consequential court order should also be publicly available, although some editing of the judgment or order may be necessary. (10) Notice of any hearing should be given to the defendant unless there is a good reason not to do so, in which case the court should be told of the absence of notice and the reason for it, and should be satisfied that the reason is a good one.’”
[37]Mostyn J revisited this issue in Re PP (A Child: Anonymisation) [2023] EWHC 330 (Fam) at [55] to [57] where he reiterated:
“55. For the reasons set out above, and stated by me elsewhere, I say as forcefully as I can that litigants in the FRC have no automatic entitlement to a sterilised judgment in which they are not named. I have explained before that the fact that financial remedy proceedings are heard “in private” merely prescribes a mode of hearing, which certain members of the public are allowed in to watch, but not others. It has nothing to do with secrecy as to the facts of the case, and provides absolutely no support to the creed that FRC litigants have an “entitlement” to privacy (see Gallagher v Gallagher (No.1) (Reporting Restrictions) at [31] – [32]). 56. If litigants in the FRC want anonymisation they have to prove that their right to a private life as well as the proper administration of justice outweighs the right to freedom of expression to such an extent that there should be a displacement of the ordinary rule which allows full reporting. That is a far cry from an entitlement to privacy in the absence of special circumstances asserted by the supporters of this creed. 57. Should FRC litigants be entitled to claim this privileged special treatment in contrast to almost all other litigants? The answer is an emphatic no, not only for the reasons I have laboriously given, but additionally for those given by the Privy Council in McPherson v McPherson [1936] AC 177.”
[38]In her reply on behalf of the wife, Ms Faggionato cautions the court of the need to consider the decision of the Court of Appeal in Lykiardopulo v Lykiardopulo [2010] EWCA Civ 1315, [2011] 1 FLR 1427. I have been careful to do so. As noted by Mostyn J in Xanthopoulos v Rakshina, and accepted by Ms Faggionato, Lykiardopulo v Lykiardopulo (and Clibbery v Allan [2001] 2 FLR 819) were decided prior to the change in the rules of procedure permitting journalists and legal bloggers to attend proceedings. In addition, Lykiardopulo v Lykiardopulo concerned the specific, and narrow, question of how the court should decide whether or not to publish a financial remedies judgment at the conclusion of a trial during which one of the parties conspired to present a perjured case. Most importantly, the ratio decidendi of Lykiardopulo v Lykiardopulo (and of Clibbery v Allan) is that the question of publication or anonymisation falls to be resolved having regard to and balancing the interests of the parties and the public as protected by Arts 6, 8 and 10 of the ECHR, considered in the particular circumstances of the case.[39]Ms Faggionato’s diligent and detailed survey of the naming conventions applied to recent published decisions in the Family Division and Family Court (which, it might be said, tends to somewhat blur the line between the citation of authority by counsel, which is permitted, and the giving of evidence by counsel, which is not) does not change the position. Indeed, it further emphasises the importance of not taking a blanket approach to the issue of anonymisation based on perceived “policies” and the need to adhere to the principled approach set out above.[40]Each case will turn on the application of that principled approach to the particular facts of the case. As such, to suggest that because a large number of cases are anonymised in any given period all cases should be anonymised is to succumb to a logical and legal fallacy and falls into the very trap that the jurisprudence indeed warns against. Further, in so far as the exercise can be said to have any persuasive force, it is interesting to conduct the same type of survey in respect of financial remedies judgments in the Court of Appeal. That exercise reveals a number if examples where the Court of Appeal has published the names of parties who were anonymised at first instance (see for example Siddiqui and another [2021] EWCA Civ 1572, [2022] 1 All ER 860, at [140] on appeal from FS v RS and another [2020] EWFC 63, [2020] 4 WLR 139, [2021] 2 FLR 641). More importantly, and again consistent with the approach set out above, where the Court of Appeal has determined to anonymise its judgment in a financial remedies case, this has followed the careful balancing of the various interests protected by Arts 6, 8 and 10 (see for example K v L [2011] EWCA Civ 550, [2012] 1 WLR 306 and XW v XH [2019] EWCA Civ 549, [2019] 1 WLR 3757).[41]The jurisdictional foundation on which the court rests its decision whether to anonymise a judgment is s.6 of the Human Rights Act 1998. The process by which it resolves whether to exercise that jurisdiction is having regard to and balancing the interests of the parties and the public as protected by Arts 6, 8 and 10 of the Convention considered in the particular circumstances of the case, being the rights most likely to be engaged in respect of financial remedy proceedings. This is the approach that has been repeatedly confirmed by the higher courts, even in those authorities that are traditionally cited in opposition to publication, most notably Lykiardopulo v Lykiardopulo and Clibbery v Allan. In the context of the cardinal principle of open justice, in deciding whether to permit anonymisation this is the approach that must be adopted in each case.[42]It is important to be clear that the foregoing authorities, including the decisions of Mostyn J in Xanthopoulos v Rakshina and Re PP (A Child: Anonymisation), do not purport to proscribe a fixed outcome on the question of anonymity in every financial remedies case. Rather, they emphasise in the context of cardinal legal principles of very longstanding that the court must address the question of anonymity specifically and on a principled basis, applying the test established by the case law to the particular facts of the case. Having undertaken the required balancing exercise in this case, I am not satisfied that there is any justification for anonymising the judgment.[43]In neither her submissions nor her written reply does the wife expressly identify what right or rights she contends would be interfered with if the judgment was published without anonymisation, and hence what rights compete in this case with the principle of open justice and the rights under Art 10 of the ECHR and how those rights weigh in the balance. In particular, the wife does not attempt to identify any specific curtailment of her right and the family's right to respect for their private and family life which would flow from publishing the judgment in a form which identifies the parties and the details of the case. In so far as it is implicit in the wife’s submissions that her rights or the rights of others are engaged and fall to be balanced against the principle of open justice and the rights under Art 10 ECHR, the wife again advances no coherent argument beyond an asserted absence of public interest in these particular proceedings and some vague assertions regarding the interests of third parties with respect to the interference with those unspecified rights that would result from the judgment being published without anonymisation.[44]With respect to the parties business interests as dealt with in the judgment, there is already a published judgment arising from proceedings in the Chancery Division concerning the husband’s early business dealings that formed part of the foundation of the matrimonial finances, which is not the subject of anonymisation. The Colendi and ELSA deals that might have justified a degree of anonymisation on the grounds of commercial sensitivity have already been done and are now concluded. With respect to the family, the parties’ children are adults and are not in any event named in the judgment. Whilst it might be uncomfortable or embarrassing for the wife to have the conclusions the court has reached in respect of her credibility and conduct published in a form that identifies her, that embarrassment or discomfort is not capable on its own of overbearing the principle of open justice. The fact that the proceedings were heard in private, that no members of the press attended the court hearing and that no Transparency Order has been made are not, in my judgement, matters capable of altering that position.[45]The same must be said for the wife’s implied assertion that the husband is seeking publication in order to seek retribution against or to punish the wife. First, there is no evidence that this is the case. In light of the matters set out above, it is perhaps not surprising that the husband has chosen not to press the court to anonymise its judgment prior to publication. In any event, the question of anonymisation is a matter for the court to determine in accordance with the principles I have set out and not a function of the agreement or otherwise of the parties. Even were the husband to have taken the same position as the wife in respect of anonymity, the agreement of the parties that the judgment be anonymised could not be determinative.[46]Within this context, the matters identified by the wife in her written submissions and reply are not sufficient in my judgement to justify interference with principle of open justice and Art 10 ECHR that would result from the anonymisation of the judgment prior to its publication. I am further satisfied that there are matters that justify any resulting curtailment of the wife’s right and her family's right to respect for their private and family life under Art 8 consequent on publication of a judgment without anonymisation.[47]The general rule is that the names of the parties to an action are included in orders and judgments of the court and there is no general exception for cases where private matters are in issue. An order for anonymity or any other order restraining the publication of the normally reportable details of a case is a derogation from the principle of open justice and an interference with the Art 10 rights of the public at large. Given the significant public resources utilised in the determination of these proceedings, I am satisfied that there is a sufficient general, public interest in publishing a report of the proceedings. In addition, I do consider it a factor in the balancing exercise that I have in this case made a finding that the wife had hidden the true consideration for ELSA by keeping the deferred consideration and the consultancy agreement in respect of ELSA off the balance sheet and that the wife made serious allegations of conduct against the husband, including that he had been financially coercive and controlling, that were found not to be credible on the evidence and which had no hope of meeting the high threshold required.[48]Within the foregoing context, I consider that these factors justify the interference in the wife’s right to respect for her private and family life under Art 8 that arises from publishing a report of these proceedings that identifies the parties.[49]In all the circumstances, having balanced the wife’s right to respect for private life and family life (in so far as she relies on it) and the proper administration of justice against the principle of open justice and the Art 10 ECHR right to freedom of expression, I conclude that, on the particular facts of this case, the latter outweigh the former. Accordingly, the substantive judgment in this matter, and this judgment, will be published without anonymisation.

CONCLUSION

[50]In conclusion, and having reconsidered the matter in light of the written reply provided on behalf of the wife by Ms Faggionato, I will make a costs order in favour of the husband in the sum of £84,450 to be paid within 28 days. As stated above, the substantive judgment in this matter and this judgment will be published in their present form.

Cited in 2 later judgments