Costs awards in Family Cases

We have recently successfully assisted a client in securing a rare costs order against a Local Authority in public law family proceedings. See Re C A Child

Having done so we thought a quick recap on the main considerations might be of interest.

The Court retains, by way of CPR 44.2, full discretion as to costs in family proceedings.

Part 28 (1) of the Family Proceedings Rules further provides that the Court may make any costs order that it considers just.

By virtue of Part 28 (2) of the Family Procedure Rules 2010 however, the general rule under CPR 44.2(2)(a), (that the unsuccessful party will be ordered to pay the costs of the successful party), is removed in family proceedings.  Costs are not usually awarded unless exceptional circumstances are in play. 

There are special considerations that militate against the approach that is appropriate in other kinds of adversarial civil litigation. This is particularly true where the interests of a child are at stake.  

There are sensible, practical and policy reasons for that approach such as the difficulty establishing a clear winner and loser in family cases and the reluctance to punish a Local Authority for exercising its statutory duty to investigate and protect a child, where there are reasonable grounds for suspecting harm. There are valid public policy concerns that Local Authorities would not pursue all relevant allegations for fear of a costs liability, should they not be proven. A risk of costs liabilities against Interveners such as Grandparents, who are less likely to secure Legal Aid, could also impact on their willingness to put themselves forward, to the detriment of a child.   

It is therefore usual in proceedings involving a child for no order to be made in relation to costs. 

Costs orders in family case are not unheard of however and, as part of your duty to your client and where legally aided, to the Legal Aid Fund, you should always be alive to the possibility, no matter how remote.    

The nature of the proceedings

Financial Remedy Proceedings. 

Although potentially more common than in Children proceedings, where the family proceedings involve money, the award of an order for costs is also subject to a more restrictive approach than in general civil litigation. FPR 28(3) refers and includes the need to consider various additional factors including the financial impact of the costs award on the paying party. 

Is there a different approach where a discrete contested issue is raised:

Following the introduction of the 2010 Family Procedure Rules there seemed to be a loosening of the reluctance to award costs in family cases, specifically where discrete issues/hearings arose

See the Private Law family case of Re: J (Costs of fact Finding Hearing) [2009] EWCA Civ 1350. Although not awarded on basis of unreasonable behaviour the court took a “compartmentalised” approach to the discrete Fact Finding costs and made an order for their payment.

In the later case of T (Children) [2012] UKSC 36 the Supreme Court on appeal held unanimously that the general practice of not awarding costs in care proceedings against a party, including a Local Authority, in the absence of reprehensible behaviour or an unreasonable stance, should not be subject to an exception in the case of discrete fact-finding hearings. This case can be distinguished from Re: J by the fact that there was no argument presented that the Local Authority conduct had been in any way unreasonable or reprehensible.

Conduct

In the case with which we were involved Re C A Child there was clearly a significant criticism of the conduct of the Local Authority representative in the presentation of evidence to the Court and approaches made to the Judge.

The already strong conduct argument for a costs award was further strengthened by the fact the receiving party was not legally aided for significant periods and was potentially liable to costs recoupment by virtue of a revoked certificate.

For a further example of a costs order against a Local Authority for unreasonable behaviour, substantially including pre litigation behaviour, See A & S (Children) v Lancashire County Council [2013) EWHC 851  

Non Party

For an indication of the approach in an application for costs against a non party Local Authority see HB v PB, OB and LB of Croydon [2013] EWHC 1956 (Fam) where an inadequate Section 37 report led to costs being awarded against the Local Authority.

Unreasonable/Reprehensible Behaviour

The strongest argument that therefore remains, in many Financial Relief cases, and the only realistic argument, in Private and Public Law Children cases, is that there has been unreasonable or reprehensible conduct.

 

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