Costs In Family Proceedings – Amy Bryant

Unsurprisingly, most people who are going through, or contemplating, family Court proceedings are anxious about the financial cost of the proceedings. Many people wonder whether they will be able to claim their own legal costs from the other party. People often assume that, as is the case in most other civil law cases, the “successful” party will get their costs paid by the “losing” party. However, except in very limited circumstances, this is not the case in family law and in the vast majority of cases, the “successful” party will not recover their costs from the other.

The basic position is set out in the Family Procedure Rules 2010 (FPR), which make it clear that in family proceedings, the general rule is that the Court will not make an order requiring one party to pay the costs of another.  Therefore, at the end of most cases, the Court will order that there is “no order as to costs”, leaving each party to bear their own costs. This contrasts other civil law cases, where the Civil Procedure Rules (CPR) apply, and where the norm is that “costs follow the event”.

Whilst the overarching rule is that in family cases, there will be “no order as to costs”, the rules go on to state that “A Court may make an order requiring one party to the 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)”.

In deciding whether the circumstances of a particular case justify such an order, the Court will consider several factors:

• The way in which the parties conducted the litigation
• Whether the parties were prepared to enter into reasonable negotiations
• Whether the parties complied with the Court’s orders and directions
• The way in which the parties pursued or responded to various issues in the case

However, even if a party’s conduct in the proceedings has not been satisfactory and even though they didn’t achieve what they were seeking, this does not automatically mean that the party’s will be ordered to pay the other party’s costs; the Court must bear in mind it’s duty to achieve a “fair” result and so the financial effect on the “loser”  of having to pay some or all of the other’s costs, may produce an outcome which the Court feels would not in fact be fair when the net effect is considered.

Since April 2024, a party’s failure to attend a Non-Court Dispute Resolution or Mediation Information and Assessment Meeting (MIAM) can be taken into account by the Court when considering the issue of costs, as yet it is not clear to what extent this may result in more frequent costs orders. However, all parties should err on the side of caution and ensure that they can show that Court proceedings were a last, rather than first, resort.

To speak with a member of our Family and Divorce team, please call 01892 510 222 or email info@bussmurton.co.uk