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(Family Division; Sumner J; 19 March 2008)
The husband had been awarded costs against the wife, and had applied for a wasted costs order against the wife's solicitors, whose conduct of the ancillary relief litigation had been criticised by the judge. Although the husband subsequently agreed to pay the wife £62,000 and to set aside the order for costs against her, he persisted with the wasted costs application.
The husband had waived rights to the very costs he subsequently sought to recover from the wife's solicitors and the court was not satisfied that the husband could show that any waste of costs had resulted. The husband could, probably, have safeguarded his claim against the firm by appropriate wording in the consent order, but had failed to do so. Furthermore, where the wasted costs application was not protected in the agreement with the wife, there was a risk that the husband might obtain double recovery; he would be giving credit to his wife for specified costs, then seeking to recover the same costs from the solicitors.