COSTS/MARRIAGE: Wilkinson v Kitzinger and Attorney-General (Lord Chancellor Intervening) [2006] EWHC 835 (Fam)

12 APR 2006

(Family Division; Sir Mark Potter P; 12 April 2006)

The petitioner was seeking a declaration as to her marital status under the Family Law Act 1986, s 55. Although domiciled in England, she had undergone a form of marriage in British Columbia, lawful and valid by the law of British Columbia. The marriage was with another woman, also domiciled in England, and the issue was whether the marriage was void, and to be treated as a civil partnership. As an interlocutory matter, the petitioner sought a protected costs order in respect of the intervener's costs. The legal representation of the petitioner and the other woman was being provided pro bono, and the Attorney-General had elected not to take an active part in the case, preferring the Lord Chancellor to present arguments.

This was not a case in which it was appropriate to make a protected costs order: the petitioner's prospects of success were substantially in doubt, and depended upon establishing propositions which extended well beyond the present bounds of English and European jurisprudence; and there was scant evidence of a substantial number of same-sex couples in the same position and it had not been established that the issues raised required resolution as a matter of general public importance. It was not unreasonable, unfair or unjust, in the absence of evidence of real hardship, that the petitioner should be at risk of at least a contribution to the costs of an intervener who had a proper interest in opposing the claim: a cap of £25,000 was imposed upon any sum which might ultimately be awarded to the intervener on account of costs.

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