It is now well accepted that the general rule in family proceedings is that each party pays their own costs. The Family Procedure Rule 28.3 does, however, provide that ‘the court may make an order requiring one party to pay the costs of another party at any stage of the proceedings where it considers it appropriate to do so because of the conduct of a party in relation to the proceedings (whether before or during them)’.
Legal costs in financial remedy cases have come increasingly under the spotlight and reported in the media in recent years and recent case law has seen judges emphasise the need for litigants to negotiate reasonably on an open basis, once financial disclosure has been obtained in order to reduce costly legal fees.
In the recent case of OG v AG [2020] both parties non-disclosure led to an ineffective FDR (Financial Dispute Resolution Appointment) and the parties incurred legal costs in excess of £1 million. This led Mr Justice Mostyn to make the following comment: “It is important that I enunciate this principle loud and clear: if, once the financial landscape is clear, you do not openly negotiate reasonably, then you will likely suffer a penalty in costs. This applies whether the case is big or small, or whether it is being decided by reference to needs or sharing."
This is an important reminder to family lawyers and litigants that a failure to comply with their disclosure obligations and negotiate reasonably on an open basis, once financial disclosure has been obtained, may result in a costs order being made against the unreasonable party.
Costs orders in proceedings relating to children are even rarer still. The normal rule in children cases is that there will be no order for costs, as it is not usually considered appropriate to penalise a parent with a costs order, unless the unreasonable conduct of one party justifies one. The nature of some of the applications being made to the court has also recently been criticised by a leading family judge in B (A Child) (Unnecessary Private Law Applications).
His Honour Judge Wildblood QC gave examples of micro-management requests made to the Bristol Family Court in the last month alone, which included asking the court how contact could be arranged to take place on a Sunday afternoon and another asking which junction on the M4 to hand over a child for contact. He further commented:
“Do not bring your private law litigation to the family court here unless it is genuinely necessary for you to do so. You should settle your differences (or those of your clients) away from court, except where that is not possible. If you do bring unnecessary cases to this court, you will be criticised, and sanctions may be imposed upon you.”
These may seem like harsh words, but they must be seen in light of the enormous pressure the courts are under to list and progress cases and the backlog has unfortunately worsened due to the Covid-19 pandemic and the many hearings that have had to be postponed as a result.
There are many options to consider to resolve both financial issues arising from a divorce and children disputes out of court and these should always be considered before any court application is made, particularly in light of the back log we are now seeing in the courts.
The most common forms of ADR (Alternative Dispute Resolution) in family cases are mediation, round table meetings, collaborative meetings or arbitration. Engaging in a form of ADR can result in an agreement being reached on an amicable basis and far more quickly than going through the courts and also avoids the sizeable legal fees and stress of lengthy court proceedings.
If you would like to discuss any of the above issues or any other family matter please do not hesitate to contact Melissa Gire by email: meg@cooperburnett.com or by phone on: 01892 515022.
This blog is not intended as legal advice that can be relied upon and CooperBurnett does not accept any responsibility for the accuracy of its contents.
