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.
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:
The court’s approach was summarised in Re T (a child) (order for costs)  EWCA Civ 311  and :
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
Litigants in person
A litigant in person may be entitled to a costs order. However, the costs order will be limited to:
Litigants in person are not immune from costs orders being made against them. As per the comments in Barton v Wright Hassall LLP  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)  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.
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 firstname.lastname@example.org for further details.