Cost Orders In Family Law: A Costly Business

• Published date: 09 December 2021
• Subject Matter: Family and Matrimonial, Family Law
• Law Firm: BLM
• Author: Grainne Fahy

Grainne Fahy, partner and IAFL fellow and Head of Family Law at BLM law firm talks about cost orders in family law, how compliance and failure to negotiate sensibly are causing issues where they didn't in the past and the cost consequences for unnecessary litigation.

There always seemed to be much less jeopardy in family law cases, than perhaps their civil cousin. Though, I must admit that the expected conformity of the CPR versus the FPR always appealed to me much more.

You see, I'm a stickler for a timetable and family law has always had an air of being a bit too lax in that respect... until now. We, and our clients, would work towards filing dates only to be told at the last minute that for no particular reason the solicitor acting for the other party needed an extension or that evidence would be filed with no direction or court order to do so. This has always been difficult to explain to our clients, especially those who have fastidiously adhered to the letter of any court order.

Costs in Family Law

FPR 2010 part 28.3(5) provides the general rule in financial remedy proceedings of no order as to costs, but FPR 2010 28.3(6) provides that the court may make an order requiring one party to pay the costs of the other at any stage in the proceedings where it considers it appropriate to do so because of conduct. That, in my experience, rarely happened.

We are all aware of the sorts of interim applications that the general rule does not apply, such as interim maintenance, applications to strike out, notice to show cause to name a few: the "clean sheet" category. The starting point in these applications is that costs follow the event, but that presumption may be displaced more easily in a family case rather than a civil case. These "clean sheet" applications is where I have been most wary of costs in family law proceedings.

FPR 2010 28.3(7) sets out the criteria which the court needs to consider when asked to make a costs order in proceedings to which the general rule applies:

1. Any failure by a party to comply with these rules, any order of the court or any practice direction which the court considers relevant;
2. Any open offers to settle made by a party;
3. Whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;
4. The manner in which a party has pursued or responded to the application or a particular allegation or issue;
5. Any other aspect of a party's conduct in relation to proceedings which the court considers relevant...