Costs in family proceedings – all change

March 23, 2020

The law and practice related to costs and funding in family proceedings continue to develop rapidly. Family lawyers may be unaware and surprised at some of the significant changes.

Change to criteria for granting exceptional public funding could benefit respondents to Hague Convention applications

One change worth emphasising is to the criteria for granting exceptional public funding.  Since the changes in 2016, in the last quarter 68% of applications have been granted (previously nearly all were refused).

But only immigration lawyers seem to be taking advantage of the change.

Arguably respondents to Hague Convention applications, and parties unable to cross-examine effectively or at all without representation are 2 classes of litigants who should also be eligible for exceptional case funding.

Publicly funded representation for committals

A key change recently has been to committals.  In February 2020, the Legal Aid Agency issued guidance for providers ‘Apply for legal aid in civil contempt – committal proceedings’.  This short document has a useful flowchart which should help solicitors ensure that anyone facing committal proceedings has publicly funded representation if they want it. And it is not means tested.

Costs order against a local authority – not party to the proceedings

A second recent development relates to costs orders against local authorities and Cafcass who have been required to write reports under section 7 of the Children Act in private proceedings to which they are not parties.  Currently there is no precedent for such adverse costs orders.

When one was appealed in February, Williams J did not allow the appeal, but said that his judgment was not to be taken as setting a precedent.

These applications for a costs order against non-parties in family proceedings are increasingly common. However whether a local authority or Cafcass is sufficiently closely connected with the proceedings for such a costs order to be made against them needs to be determined in a suitable case.

Can a lump sum order in financial remedy proceedings include a costs element when there hasn’t been bad conduct?

Finally, there is the vexed issue of whether a lump sum order in financial proceedings can include a sum for costs when there would not be a costs order made, to leave the recipient with enough money to buy a suitable property.

The matter has been considered several times recently in the High Court:

  • Holman J Daga v Bangur [2018] EWFC 91 at [67]
  • Francis J WG v HG [2019] 4 WLR 16 at [91]
  • Cohen J in MB v EB (No 2) [2019] EWHC 3676 (Fam). The 27 May 2019 addition to para 4.4 of FPR PD28A is considered by Cohen J.

An appeal to the High Court on the ground that such an order should not have been made is due to be heard on 13 May. The judgment may provide greater clarity.

 

Dr Sara Hunton co-wrote Costs in Family Proceedings which includes more in-depth discussion of these and other related issues. The 2nd edition of the book was published by Bloomsbury Professional in February 2020.