Case No. ZZ20D65691

13.1 Upon the occurrence of an Event of Marital Dissolution, Michael shall be responsible for Alvina’s reasonable legal and expert fees (such legal fees to be provided by one partner and one associate at a law firm of Alvina’s choosing) necessary to resolve all outstanding issues between the parties through entry of a decree dissolving the marriage, including, but not limited to any legal or expert fees related to child custody and access issues and child support, with Michael’s share of such fees not to exceed the sum of $750,000.13.2 If either party commences an action or proceeding to set aside or vacate this Agreement in whole or part or obtain distribution of property, or spousal support, other than as provided in and consistent with the provisions of this Agreement, then in such event that party shall be responsible for paying all of the other party’s reasonable attorneys’ fees and costs incurred in defending against such action or proceeding provided that such action proceeding, counterclaim or defense results in a decision, judgment, decree or order dismissing or rejecting said claims.”73.The husband’s stance is based on a very literal reading of these provisions, which I do not believe that the Commuter on the Bronx Subway would consider was a fair reflection of the mutual intention of the parties. The husband says that in the Children Act proceedings he has paid the wife’s costs in the sum of £2,337,122. He relies on a letter written on 12 August 2021 where his then solicitor wrote:“My client does not expect your client to pay her legal fees on the [Amex] card and he shall therefore pay them directly upon receipt of the invoice (accepting the detailed time narrative which is likely to accompany the invoice is privileged and will not be provided). I will be writing separately in due course in relation to legal fees in any event, as whilst my client will continue to meet them he is only doing so in accordance with the parameters of the nuptial Agreements with which I am sure you are familiar.”Accordingly, the husband says that the cap of $750,000 or £663,717 should apply and the wife should therefore be required to reimburse him to the tune of £1,673,405 (i.e. £2,337,122 less £663,717). To achieve this the husband says the wife must give credit for £1,673,405 in the calculation of the value to be received by her under the PNA by placing a negative figure in that amount in the column in the Outcome Schedule headed “W’s value under PNA in £”.74.I have no doubt that, inasmuch as this term is relied on to add back costs incurred and paid by the husband in the Children Act proceedings, it should be construed with the concept of fairness at the forefront of my mind. The first point to be made is that the limitation of $750,000 is completely arbitrary. I am not setting out in this judgment, which will be made public, the findings of the circuit judge. I will merely point out that to have this arbitrary cap in place irrespective of what future litigation about the welfare of the children might entail has the potential to be extremely unfair. Further, there is nothing in the agreement to prevent the husband paying the wife’s legal costs of the children proceedings on a voluntary basis over and above the capped figure of $750,000. Indeed, it is clear to me that is what he has done, and he has gone on to proclaim his largesse to the circuit judge. On 4 April 2022 his leading counsel stated to the circuit judge:“We have a situation now where, if nothing substantial changes on an interim, my client is left pretty much where he was for another eight weeks, in circumstances where your Honour will know that he, and he alone, is paying for the costs of these proceedings.” And on 1 July 2022 his (different) leading counsel stated to the circuit judge:“This is a billionaire father who is paying nearly now £1 million in maintenance per year to the mother, plus all the house bills, plus all the school bills, and all the legal fees to the mother. There is no order that was required for him to do that.”75.In my judgment it would be grossly unfair for these provisions to be relied on to require the wife to reimburse the husband with her Children Act costs paid by him, and I decline to do so. I am satisfied that the husband represented to the circuit judge that he was paying the wife’s costs with no strings attached. His solicitor’s letter of 12 August 2021 was overreached by those representations.76.The husband’s stance in relation to the financial remedy costs is even more relentless. He says that the wife must give credit not only for her financial remedy costs of £2,185,797 which he has paid, but also for his financial remedy costs of £2,128,972. One of the reasons for such high costs was the husband’s woeful non-compliance with his voluntary agreements to pay costs and all outgoings, and latterly with his obligation under my maintenance pending suit order to pay a monthly allowance and to discharge all outgoings. I had to deal with enforcement applications on two occasions on each of which I made an order for indemnity costs against the husband.77.The husband does not seek to escape that costs liability which he accepts in the full amount of £260,601 claimed by the wife for those hearings. He therefore seeks under the terms set out above a credit in the Outcome Schedule of £2,185,797 + £2,128,972 - £260,601 = £4,054,168.78.In my judgment it would be grossly unfair, on the facts of this case, for the wife to be required, in effect, to pay the husband’s indemnity costs of these proceedings. I reach that conclusion having regard to the general rule as set out in FPR 28.3(5) of no order as to the costs of a final financial remedy hearing. That general rule can be displaced under FPR 28.3(7)(a) - (e) by reference to the conduct of the parties, but there has been no relevant conduct on the part of the wife justifying its displacement. I therefore flatly refuse to reach a conclusion about the meaning of the PNA which has the effect of requiring the wife to pay the husband’s costs on the indemnity basis.79.On the other hand, I cannot see any good reason why the wife should not pay her own costs of the financial proceedings with credit for the orders for costs which she has obtained. In addition to the £260,601 already mentioned the wife argues that I should make an order in her favour for her costs of the maintenance pending suit proceedings, which were reserved to me at this final hearing. The wife’s Form N260 for that hearing states that she incurred costs of £109,995. Following the distribution of this judgment in draft I have been informed by the wife’s junior counsel that there were further costs not captured in her Form N260 for the maintenance pending suit hearing totalling £44,692. No explanation was given as to why these costs were omitted from the form. I am not prepared to enlarge the husband’s liability on the basis of this late submission. It is not acceptable that the Form N260, endorsed with a statement that the costs did not exceed the stated amount, should have been inaccurate. It is in order to emphasise the imperative necessity of Form N260 being completed accurately that I make a different decision on the includability of this new figure to the one I made in relation to latent tax under [71]. 80.FPR 28.3(4)(b)(i) provides that an application for maintenance pending suit is not covered by the no-order-for-costs general rule in FPR 28.3(5). The wife plainly prevailed on that application and is entitled to her costs of it. In my judgment those costs should be assessed on the indemnity basis because the husband’s conduct leading up to that hearing, and his stance at that hearing, took the case “out of the ordinary”. That is the criterion which I apply when considering whether an order for costs should be made on the indemnity basis. I am required under CPR PD 44 para 9.1 to consider making a summary assessment and I do so in the sum of £109,995.81.Accordingly, in my judgment the wife should pay her own costs in the financial remedy proceedings. This means that she must “reimburse” the husband with the sum he has paid of £2,185,797 less the value of the orders for indemnity costs which I have made in the sum of £370,596. This means that the negative figure of £1,815,201 is used in the Outcome Schedule.