Just over a week has passed since judgment was handed down in the Court of Appeal case of Entwistle v Helliwell. The Court of Appeal concluded that Ms Helliwell failed to properly disclose the true extent of her assets and, as a result, the prenuptial agreement entered into by the parties should not be upheld. The case is to be remitted back to the High Court for a reconsideration of Mr Entwistle’s needs, without reference to the terms of the prenuptial agreement. For more details on the substantive appeal read our earlier blog.

The rehearing of the case is not the only consequence of Ms Helliwell’s material non-disclosure, as today the Court of Appeal handed down a costs judgment which although short, makes compelling reading.

Mr Entwistle sought a costs award in his favour on an indemnity basis, meaning that any doubt as to whether the costs he claimed should be awarded, should be resolved in his favour. The effect of an indemnity costs award is that the receiving party receives a greater amount of their costs than they would if costs were assessed on the standard basis. Ms Helliwell opposed this application and sought an order that costs should be determined on the standard basis and should not become payable until the conclusion of the rehearing in relation to Mr Entwistle’s needs.

The judgment outlines the court’s wide discretion in respect of costs and emphasises the court’s ability to take the conduct of the parties into account when determining whether a costs order should be made. The judgment also sets out that when considering whether to award costs on an indemnity basis, the conduct of the parties or other circumstances of the case should be “out of the norm”.

The Court of Appeal examined Ms Helliwell’s conduct within the proceedings including, her deliberate failure to disclose the majority of her assets notwithstanding that pursuant to the agreement she represented that she had made full disclosure, her rejection of Mr Entwistle’s offer to forego reliance on the pre-nup and the “self-interested” explanations she used to attempt to justify why she had misled Mr Entwistle.

The Court concluded Ms Helliwell’s conduct could not be described as reasonable and was well “out of the norm”. Ms Helliwell has been ordered to pay Mr Entwistle’s costs of the appeal on an indemnity basis. Strikingly, the Court has also made an order that Ms Helliwell pay Mr Entwistle’s costs of the first instance final hearing in the original financial remedy proceedings, also on an indemnity basis. 

This award symbolises the severity of Ms Helliwell’s conduct and the court’s view of individuals failing to disclose their assets ahead of a prenuptial agreement when they have expressly agreed otherwise. Those considering or already party to a prenuptial agreement should consider their position carefully with their advisors to ensure they do not face the same consequences.

Read the costs judgment in full here.