An individual may choose to intervene in ancillary relief proceedings where he or she has an interest in one of the matrimonial assets, for example the family home. The intervenor’s claim is usually determined by the court as a preliminary issue in order that this can be taken into account in the main ancillary relief proceedings.
In the case of Baker v Rowe [2009] EWCA Civ 1162 the costs being claimed arose from the intervention of the daughter and her (now separated) husband into the divorce of the daughter’s parents. In 1989, the parents had taken advantage of a right to buy on the family home. However, they could not afford the payments so their daughter and son-in-law stepped in to make the payments instead. They carried on doing this for the next six years. Upon divorce from her husband in 1995, the daughter carried on paying the mortgage on her own. As part of the divorce settlement, the daughter’s husband agreed to make no claim in respect of the property in question. However, upon the parent’s divorce, the daughter intervened to establish that she was the beneficial owner of the property. Her ex-husband also intervened, in spite of his earlier promise not to, in order to separately claim a share of that interest. His claim was dismissed.
The judge ruled in favour of the daughter and ordered her ex-husband to meet the costs of her intervention in her parents divorce on the basis that the general rule in ancillary relief proceedings, namely that there be no order as to costs, did not apply in this situation. This costs order was then appealed. It was held by the judge on appeal that the proceedings in question were “in connection with” ancillary relief but not “for” ancillary relief. The general rule of no order as to costs in ancillary relief proceedings therefore did not apply. The judge commented specifically that it would be highly unfortunate, as well as unprincipled, if a successful intervenor could not seek a costs order in his or her favour.
The court can therefore make costs orders in favour of third party intervenors and are not precluded from doing so by the general no order as to costs rule, which will not apply in this situation.
Jo Everard