(Comm)
at [25(5)] Tomlinson J held that “where a claim is speculative, weak, opportunistic or thin, a claimant who chooses to pursue it is taking a high risk and can expect to pay indemnity costs if it fails”. 83.I have already explained why the renewal application in respect of Grounds 1 and 3 were totally meritless. However, Ground 2 addressed the trial judge’s legally innovative disposal, but its resolution was always going to be adverse to the husband given the words of the statute. But I cannot say that the husband’s pursuit of the substantive appeal took the case out of the norm. 84.Does his failure to negotiate take the case out of the norm? I have come very close to deciding that it does. However, in the absence of any specific provision in FPR PD 28A imposing a duty to negotiate in appeal proceedings I have, with some reluctance, decided that while the failure of the husband to negotiate reinforces his liability for standard costs, it does not elevate his liability to indemnity costs. 85.In my judgment the husband should pay the wife’s costs on the standard basis. It is appropriate that I should summarily assess them. In my judgment for the wife to recover 75% of her actual costs is a fraction that not only reflects the criterion of reasonableness but also the key principle of proportionality pursuant to CPR PD 44 para 6.2. I therefore award the wife her costs and assess them in the sum of £18,561. 86.That is my judgment. _______________________