I am often asked by my clients in private law proceedings whether they can recoup their costs of the proceedings from the other side. Generally, the answer is that it is very unlikely that the court will make a costs order unless the other side has engaged in unreasonable litigation conduct (not acted unreasonably towards the child) and even then, it can be an uphill struggle to obtain a costs order. This is often a frustrating answer for the client, especially so if they are privately paying.
General provisions
The relevant costs provisions are set out FPR Part 28 and PD28A. The general principles are:
- The court may at any time make an order as to costs as it thinks is just (i.e., discretion as to costs), FPR Rule 28.1.
- The general rule that costs follow the event are disapplied in private law proceedings (the opposite to civil proceedings), FPR Rule 28.2.
- Costs orders in private law proceedings are rare.
The reasoning behind the court’s approach is that a costs order will reduce the funds available to meet the needs of the child, proceedings are inquisitorial, it is likely to increase tensions between the parties, impede future co-operation and it may deter a party from bringing an application which may be in the best interests of the child.
CPR Rule 44.2(4)-(5) applies within private law proceedings at first instance and on appeal. The court shall have regard to:
- Whether a party has succeeded on whole or part of their case.
- The conduct of the parties, including:
- conduct before and during the proceedings;
- whether it was reasonable for a party to raise, pursue or contest an allegation or issue;
- the manner in which a party pursued or defended an allegation or issue; and
- whether the party who succeeded has in whole or part exaggerated their claim.
The court’s approach was summarised in Re T (a child) (order for costs) [2005] EWCA Civ 311 [36] and [50]:
- “…costs awarded against one parent or another are exceptional since the court is anxious to avoid the situation where a parent may feel “punished” by the other parent which will reduce co-operation between them. This will only impinge ultimately on the welfare of the child or the children concerned.”
- “The conduct of the parties is in reality the major consideration when deciding whether or not an exceptional order for costs should be made. It should only be made if the penalised party has been unreasonable in his or her conduct. Moreover the “unreasonableness” must relate to the conduct of the litigation rather than the welfare of the child.”
- “One has to be very careful in this distinction when, as in the case of (the mother), the apparent unreasonableness is as a result of the personality of the relevant party. In such circumstances, there is often an overlap of that party’s conduct of the litigation and the conduct relating to the welfare of the child.”
- “We recognise that irrational behaviour is commonplace in complex contact disputes, and that such behaviour may well be exacerbated by the personality of the individual parent. There is, however, in our judgment, a limit to which allowance can be made for a parent who deliberately and unreasonably obstructs contact by the other parent in circumstances where, on any objective analysis, contact is in the interests of the child and should take place.”
Giving notice
When seeking costs, it is good practice to give the other side notice of your application. A costs schedule should be served not less than 24 hours prior to the hearing (usually by way of Form N260). Although serving a schedule less than 24 hours prior may not be fatal, the court may take this into account and any reasonable excuse when determining the application, CPR PD44.
Assessment of costs
The court may assess a party’s costs on a standard basis (costs allowed that are proportionate to the matters in issue) or indemnity basis. Usually, costs are assessed on the standard basis. If the order is silent as to which basis the costs will be assessed on, they will be assessed on the standard basis.
The court will need to determine whether the costs are assessed during the proceedings or at the conclusion of the proceedings which can be done on a summary assessment or detailed assessment.
Summary assessment is ‘there and then’ and usually for hearings lasting 1-day or less. The court has a wide discretion in respect of summary assessment. A case should not be summarily assessed where the receiving party is legally aided or is a child or protected party unless the solicitor has waived the right to further costs.
Detailed assessment would not normally be undertaken until the end of the proceedings and follows a specific procedure set out in CPR PD47.
The court may ‘reserve’ costs until the conclusion of the proceedings. The order should clearly set out which costs are being reserved until when and should be reserved to the judge making the order.
Examples of where costs orders have been made
- A party unreasonably rejecting mediation unless the other party agreed to a shared residence order whilst ignoring Cafcass recommendations to the contrary and maintaining this position until 4 days prior to a 3-day hearing, M v H (Costs: Residence Proceedings) [2000] 1FLR 394.
- A father was ordered to pay 2/3 of the mother’s costs of a fact-finding hearing where the majority of the mother’s allegations were proven (14 out of 20, inclusive of some partial admissions), Re J (Costs of Fact Finding Hearing) [2009] EWCA Civ 1350.
- Where a party applied for a child arrangements order when the child was rising 16 years old and there were no exceptional circumstances.
- Where the mother attempted to bribe a police officer to bring a spurious case against the father to support her case, Timokhina v Timokin [2019] EWCA Civ 1284.
- Defending an appeal and re-hearing of an application to re-locate out of the jurisdiction, Costs: Leave to Remove – Re S (Leave to Remove: Costs)[2009] EWHC 3120 (Fam).
- The father unreasonably persisted with his application for residence on the grounds that the mother was a risk to the child after two psychiatrists advised to the contrary, father being ordered to pay 80% of the mother’s costs from the date that the psychiatrists filed their joint accord, Re B (Costs) [1999] 2 FLR 221.
- The father made a number of groundless allegations of serious conduct against the mother which had been fabricated by him, Re G (Contact Proceedings: Costs) [2013] EWCA Civ 1017.
Litigants in person
A litigant in person may be entitled to a costs order. However, the costs order will be limited to:
- work and disbursements that would have been allowed, if they had been undertaken by a legal representative on their behalf;
- any reasonable costs incurred for legal services, or the costs of an expert in costs in assessing the costs claim;
- provable financial loss relating to time lost that was reasonably spent on the case, or; and
- if no financial loss can be proved, then £19 per hour (from 6 April 2016) for the time reasonably spent on the case (no VAT is chargeable).
Litigants in person are not immune from costs orders being made against them. As per the comments in Barton v Wright Hassall LLP [2018] 1 WLR, 1119, UKSC, a litigant in person does not form a privileged class for whom the rules are modified or disapplied, and the litigant in person is expected to familiarise himself with the relevant procedure and take legal advice if necessary. Therefore, it is not an excuse for a litigant in person to say “I didn’t know” and expect no consequences.
A word of warning
In Re B (A Child) (Unnecessary Private Law Applications) [2020] EWFC B44, HHJ Wildblood refers to requests from the parties to ‘micromanage’ child arrangements including which junction of the M4 should handovers take place at, which parent should hold the children’s passports and how contact should be arranged to take place on a Sunday afternoon.
Whilst it is important to distinguish between safeguarding issues and parental / logistical issues, HHJ Wildblood concluded:
“Do not bring your private law litigation to the Family court here unless it is genuinely necessary for you to do so . . . If you do bring unnecessary cases to this court, you will be criticised, and sanctions may be imposed upon you.”
Noting FPR Rule 1.1 where the court must deal with matters justly which includes “allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases”.
At the present time, there is no pre-action protocol in respect of private law proceedings. However, it is expected that parties will have exhausted all avenues before making an application to the court to determine issues (noting the requirement for a MIAM). Failure to do so may be a factor considered by the court when determining whether to make a costs order or not.
Conclusion
A costs order, or the threat of one, can be used as a tool to deter unreasonable and / or meritless applications or encourage settlement (in appropriate cases) and therefore could be utilised by the courts in greater number to this effect. This may in turn decrease the backlog of cases currently plaguing the courts and increase the user’s confidence in the judicial system where there is a punishment for ‘bad behaviour’.
This article does not examine non-party costs orders or costs orders against legally aided parties.
The team at Becket Chambers frequently take instructions in relation to all aspect of private law, inclusive of costs applications. Please do not hesitate to contact us at clerks@becket-chambers.co.uk for further details.
