High Court upholds decision that Coleen Rooney’s budget was not misleading

But judge says it was a “misjudgment” not to make clear basis on which it was drafted

Lawyers for Coleen Rooney made a “misjudgment” in failing to clarify that their budget was an estimate of the incurred costs that would be allowed on assessment – rather than their actual spend – but it was not misconduct, the High Court has ruled.

Mr Justice Cavanagh, sitting with Acting Senior Costs Judge Rowley as an assessor, said it would have been different had it been clear they knew Rebekah Vardy’s budget represented her actual spend when they attacked it, but this was not the case.

The high-profile decision in Vardy v Rooney [2025] EWHC 851 (KB) followed Mrs Vardy’s appeal against the decision of the now-retired Senior Costs Judge, Andrew Gordon-Saker, in which he declined to find that Mrs Rooney or her solicitors had conducted themselves improperly or unreasonably.

Mrs Vardy alleged they gave Master Eastman – who conducted the budgeting exercise in the infamous ‘Wagatha Christie’ case – a misleading impression by providing figures for incurred costs that were much lower than they would have been had they used actual incurred costs.

However, Cavanagh J said it was now accepted by Mrs Vardy that providing figures for what a party thought would be recoverable was “a legitimate course of action if the party’s legal advisers do not believe that the actual figures would be regarded as reasonable and proportionate on an assessment on the standard basis”.

But she argued that the failure of Mrs Rooney’s lawyers to make the position clear to the master and her lawyers amounted to unreasonable and/or improper conduct.

In his ruling, the Senior Costs Judge said: “In embarking on a resolute attack on Mrs Vardy’s incurred costs, it behoved them to set out, or to explain, that the costs shown on their client’s budget as incurred costs was in fact only part of the picture.

“However, on balance, and I have to say only just, I cannot say, given the uncertainty of the wording of the statement of truth and the assumption that Mrs Rooney’s solicitor could have made as to the basis of Mrs Vardy’s costs, that the failure to be transparent was sufficiently unreasonable or improper.”

This assumption was that Mrs Vardy’s budget was prepared on the same basis as Mrs Rooney’s.

Cavanagh J held that Master Gordon-Saker was entitled to find that Mrs Rooney’s solicitors would or could have believed that Mrs Vardy had also used the ‘reasonable and proportionate’ basis when setting out incurred costs in Precedent H.

“This was a conclusion that he reached by inference, based upon the primary, undisputed, facts. There was material upon which he was entitled draw the inference and so to reach this conclusion.”

The position would be different if any of the observations made by Mrs Rooney’s solicitors in the Precedent R or by her counsel had made it “clear beyond doubt” that they knew Mrs Vardy’s figures had been drafted on a different, full-cost, basis “and so that the adverse comparison that counsel was making was, in the judge’s words, misleadingly comparing apples with pears”.

The judge said: “But that is not the position. In my judgment, none of the observations made by solicitors or counsel for the defendant… unequivocally show that they were proceeding on the basis that the incurred costs figure used by the claimant’s solicitors was the full-cost figure.”

It “should have been apparent” to Mrs Rooney’s legal advisers “that they should have acted with transparency”, he continued.

“Criticism of a lack transparency in the present case was a fair comment for the judge to make in light of the evidence before him, but it does not undermine his ultimate conclusion that their behaviour had not, albeit only just had not, crossed over into unreasonable and improper behaviour.”

He concluded: “The position we are left with, therefore, is that the court was not persuaded that the claimant had proved that the defendant’s legal advisers had deliberately misled the court (or the claimant) either by things said or things not said.

“There had been a misjudgment in the form of a failure to be more transparent about the basis upon which the defendant’s figures for incurred costs had been prepared, but that was as far as it went.

“The judge was entitled to make the evaluative judgment that this did not amount to unreasonable or improper behaviour, especially as he was so well-placed to form a view about practice in relation to costs.”

Commenting on the decision, Ben Williams KC, who represented Mrs Rooney, said: “This case highlights the curious nature of the costs budgeting exercise – which is not directed at what a party is spending, but what they intend to claim in any future standard basis assessment.

“This distinction is not widely appreciated, and it is doubtful that, at present, many parties adopt the self-limiting approach taken by Mrs Rooney.

“However, given the wording on the budgeting certificate, her approach was the correct one – especially since in recent cases some masters have made adverse costs orders against parties they consider to have filed unrealistic budgets…

“Since it is an open secret that parties routinely file tactically ‘low-ball’ costs schedules for interim hearings – usually when they expect to lose an application – many solicitors will be relieved to see the High Court rejecting the allegation that this is an improper, or even dishonest, litigation tactic.”

Jamie Carpenter KC (instructed by Kingsley Napley) for the claimant. Benjamin Williams KC and Robin Dunne (instructed by Brabners) for the defendant.

Photo: Антон Зайцев, CC BY-SA 3.0 GFDL, via Wikimedia Commons