General Rules for Costs in Family Law Proceedings

In family law proceedings, such as matrimonial, child arrangements and children proceedings, the issue of costs can be significant. In most cases, 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 against 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.

Costs Orders in Family Law Proceedings

The Family Court may at any time make an Order for Costs in family proceedings under rule 44.2 CPR. This type of Order will mean that one party is ordered to pay the costs of the other.

The manner in which a party has acted will be taken into consideration by the court when making a costs order. The Court will usually order a party to pay the costs of the other party if they have acted unreasonably throughout the proceedings or Court process. Costs will be payable regardless of whether a party is in receipt of Legal Aid. It is stated within the Family Procedure Rules that;

“a failure to openly negotiate reasonably and responsibly in proceedings relating to financial remedies will likely lead to an order for costs.”

Examples of Unreasonable Behaviour in Family Law Proceedings

All or some costs in family law proceedings incurred by one party may be enforced against the other party if the other party has been found to have acted unreasonably. Some examples of unreasonable behaviour in family law proceedings are listed below:

• Failure or refusal to engage in alternative dispute resolution (ADR), such as mediation in family disputes.
• One party making unfounded allegations against the other.
• A party’s refusal to attend Court hearings or any other required appointments related to the proceedings.
• If allegations made against one party are found to be true, they may be required to pay the costs of the other party.
• If it was unreasonable for a party to raise, pursue or contest an allegation or issue

The Court’s Discretion of Costs in Family Law Proceedings: KS V ND

In the case of KS v ND (Schedule 1: Appeal: Costs) [2013] EWHC 464 (Fam), a mother was ordered to pay £13,000 of the father’s costs. The case was an appeal regarding a father’s contribution towards school fees for both party’s seventeen year old son. Mr Justice Mostyn made the Order for costs against the mother as the legal costs incurred in the case “completely dwarf the sums “which the mother was seeking from the father. Mr Justice Mostyn stated:

“Time and again judges point out the madness of litigating in this way; and time and again their admonitions fall on deaf ears. At the end of the day, all we can do is to express concern about such extreme folly, and if it is ignored, then the parties will have to live with, and take responsibility for, the consequences of their decisions.”

This case highlights the extent of the Court’s discretion to make an Order for Costs where they see necessary. It also reminds us of the risks regarding legal costs in family law proceedings.

Unreasonable Behaviour in Family Law Proceedings: The Matter of G (Children)

In the case of G (Children) [2013] EWCA Civ 1017, a Costs Order was made against a father after he made unfounded allegations against the mother of his child. The father was seen to be “obsessed” with the mother, and the Court alleged that the father was using the proceedings as a way of intimidating and harassing the mother.

The father was granted an appeal for the Costs Order by Thorpe LJ; however, the appeal was dismissed, and it was held that the father had acted unreasonably within the legal proceedings. The father’s unreasonable behaviour included; initiating the proceedings when they were completely unnecessary, using the proceedings as a weapon to harass the mother and, bringing a case which had no merit and completely unfounded allegations.

Costs in Family Law Proceedings: Legal Aid

In family law cases involving legal aid, a detailed assessment order is often issued, allowing Legal Aid Solicitors to seek reimbursement from the Legal Aid Agency, unless an inter-partes costs order has been granted. If a final order is not issued, the legal aid certificate must be discharged to enable the assessment of legal aid costs.

To recover costs, Solicitors must quantify their expenditure, for both profit costs and disbursements, and submit Payments on Account (POAs) if the case is ongoing, or interim bills (if one aspect has concluded) or final bills (if the case is fully concluded) for completed work through the LAA’s online billing system (CCMS).

The Legal Aid Agency enforces strict invoice and costs submission guidelines, and we would always recommend the assistance of a costs expert to submit your costs claims online. Our Legal Aid Costs Draftsmen can provide assistance to ensure accurate and proper submissions, and high levels of rejections can impact on legal aid KPIs, which may trigger more frequent reviews of a firm’s performance by the LAA.

Submitted bills are scrutinised by the Legal Aid Agency for compliance with all guidelines. Once accepted, the agency may request evidence supporting the solicitor’s work, including court documents and invoices, before making payment.

Whilst some solicitors may recover costs for all completed work, the LAA may apply reductions if they find the claimed amounts to be inaccurate or unreasonable.

How Can ARC Costs Assist?

ARC Costs can assist in all legal costs matters, including costs on family law proceedings, 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 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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