Family Procedure Rules: Costs for Unreasonable Conduct

 

 

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Family Procedure Rules Costs

In family law proceedings, such as child proceedings, the issue of costs can be significant. Under PD 28a, the general rule in most cases is that parties are responsible for bearing their own costs. Legal costs in family law proceedings may include Court fees, the costs of obtaining legal advice, and the costs involved in gathering legal evidence.

There are some circumstances however, where the Court may make a Costs Order requiring one party to pay all or some of the other party’s legal costs. The Order will usually be made at the final hearing; however, an interim Costs Order may be made at a Court hearing at any stage within the proceedings.

Rule 28.1 of the Family Procedure Rules provides that the court has full discretion to make an order for costs in family procedures as it thinks just. Furthermore, Section 51 of the Senior Courts Act 1981 gives the court an absolute discretion as to who should pay costs in family law cases and the amount of costs payable.

CPR 44.2 considers the expression “conduct of the parties”, details of which are shown below:

(4) In deciding what order (if any) to make about costs, the court will have regard to all the circumstances, including

(a) the conduct of all the parties;

(b) whether a party has succeeded on part of its case, even if that party has not been wholly successful;

(5) The conduct of the parties includes –

(a) conduct before, as well as during, the proceedings and in particular the extent to which the parties followed the Practice Direction – Pre-Action Conduct or any relevant pre-action protocol;

(b) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;

(c) the manner in which a party has pursued or defended its case or a particular allegation or issue; and

(d) whether a claimant who has succeeded in the claim, in whole or in part, exaggerated its claim.

Costs for Unreasonable Conduct C v S [2022] EWHC 800 (Fam)

In the case of C v S, an Appellant (father) wished to pursue an application for costs against the Respondent (mother) in a family law matter regarding a child case. The Appellant argued that the Respondent had acted unreasonably throughout various legal proceedings, resulting in costs incurred.

The first matter in which the Appellant wished to recover costs was in relation to a failed application made by the Respondent to relocate their two children. The Appellant believed that the Respondent had acted unreasonably in making the application. The ruling for this was that there should be “no order as to costs.” The Costs Judge stated;

“I accept (the Appellant’s) argument that the order made in those terms, means that the question of costs was raised and then considered and decided by the court. In my judgment that decision cannot be re-opened now. The application for costs in relation to that hearing fails.”

The Appellant further argued that he should be granted costs for a Fact Finding Judgment where it was held by the Judge at the hearing that the Respondent had;

“repeatedly failed to comply with orders; she gave false evidence in a number of important respects; she was evasive; she was disingenuous; she was misleading at times; she made serious and unsubstantiated allegations of sexual and physical abuse against the father to professionals and in her evidence; she manipulated professionals to undermine the Appellant’s case; she misrepresented the evidence of others to give the impression it supported her case; she made allegations which significantly increased the hearing times; she changed the nature of her case and finally she refused mediation.”

As a result of the allegations of physical and sexual abuse, the father was required to pay for supervision which had a substantial financial effect on him.

The Judge held that the Respondent had “acted reprehensibly and unreasonably in her conduct of the fact-finding hearing.”

The Judge awarded a costs order in the sum of £37,000 against the Respondent to be paid to the Appellant.

 

How can ARC Costs Assist in Matters Involving the Family Procedure Rules?

ARC Costs can assist in all legal costs matters, including Family Procedure Rules costs, irrespective of whether you are a paying party or a receiving party. If a costs order is made, you should seek the assistance of a costs specialist immediately.

We can also provide our assistance on divorce costs and Financial Remedy Proceedings.

We are highly experienced Costs Draftsmen/Costs Lawyers and have been successful in recovering substantial amounts in legal fees for our clients. We can assist in the whole of the detailed assessment process, from drafting your Bill of Costs and Points of Reply to conducting negotiations with the other side before advising on whether the claim should proceed to a Detailed Assessment Hearing, for which one of our in-house Costs Lawyers can provide representation. 

Similarly for paying parties, we are well versed in preparing Points of Dispute and contesting legal costs claims, and on average we reduce any Bill of Costs on which we are instructed to oppose, by 40%.

We can be contacted via email at info@arccosts.co.uk, or by telephone on 01204 397302. For more information on legal costs, please find out more about our speciality areas of expertise and our services on our legal costs page.

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