Cambridge Family Law Practice

As many people know, if you go to court about something like non-payment of an invoice or a breach of contract, there is a general principle that the loser in the case has to pay the winner’s costs. This is meant to stop people from making silly claims and to pay back the money that the successful party spent on fighting the case. However in most family cases (divorce, dissolution, financial remedy and children proceedings) the “loser pays” rule does not apply. Usually, both sides in a family case have to pay their own costs.

The family courts will make costs orders against one side only in exceptional circumstances. Their behaviour within the litigation has to have been particularly bad for this to happen, especially in children cases. But how bad, and what happens if they have no way of paying? A recent case has looked at just that issue.

The case is known as In the matter of G (Children). Here, the separated parents had agreed their children’s arrangements some years ago, and these were put into a consent order and approved by the court. However only two months later the father asked the court to reopen the case, and this second round of court dates lasted 3 years. During these proceedings, the father made very serious but completely groundless allegations against the mother, which took a lot of time and resources to resolve. He also made false and disruptive allegations about some of the professionals involved in the case.

The judge was of the opinion that the father had been using the court proceedings as a weapon to harass and intimidate the mother. The court preferred the mother’s view of what was right for the children and the court finally ordered that the father would not have face to face contact with the children. As a result of his behaviour, it barred him from making any more applications to court without permission in advance.

The court also ordered that the father should pay the mother’s costs of the case. The father was given permission to appeal this decision, as it is so rare for a costs order to be made against someone seeking an order about children.

The Court of Appeal shared the judge’s very dim view of the father, whose obsession with the litigation against the mother had (it found) led him completely to disregard the interests of the children. It supported the trial judge’s decision to make the father pay costs, finding that the litigation was unnecessary and without merit, and the father had abused the court process by using it as a weapon to get at the mother.

So, appalling conduct and using the court as a weapon will get you on the wrong end of a costs order. But what if, as was the case here, you cannot pay it? The father argued as he had no income (receiving only state benefits) the court shouldn’t have made the order that it did.

“Tough”, said the Court of Appeal. The costs order would stand. The principle of making a costs order is entirely separate from the question of how to make the payer actually pay it. Not to make costs orders against people without much money as a matter of principle would leave the courts in all sorts of bother. Being poor cannot be an open door to bad litigation conduct.

Whether or not the costs order can be enforced by the mother’s legal team is another matter. If a costs order is made, and payments are not made as a result, then the next step is enforcement proceedings. At that stage the father’s financial position would be examined with a view to seeing what he could pay and when towards the debt.

Costs orders in children proceedings are rare events, and so we rarely see reported cases about them. However, there was another one last year, where an order was made against a father who had applied to court to get contact with his 16 year old daughter, even though the daughter absolutely did not want to see him. He failed to get a contact order and a costs order was made against him. He appealed, and although the Court was sympathetic to his appeal which they thought might have a chance of succeeding, it felt that the small amount at stake could not justify the costs and time of a court hearing on appeal.

It’s not always dads left with costs orders, of course. In one of our cases last month the judge ordered the child’s mother to pay for all the costs incurred in obtaining an expert’s report on an issue the court felt was entirely unnecessary, which the mother had unreasonably pursued.

Where does this all leave us? With a reminder, or two, that unreasonable and unnecessarily vicious litigation or persistently bad behaviour during the course of court proceedings may well result in someone having to pay the costs of the other side. This is a good thing as the courts should not be misused, but it is important still to remember that costs orders generally remain a rare exception in family cases. In most cases, each side will be paying their own costs, and your idea of what is unreasonable in the course of litigation may fall short of the court’s high standards.

If you would like to talk about anything raised above, do give Adam, Gail Sue or Simon a call on 01223 443333.

*This blog is written for informational purposes as a free public resource. Nothing in this blog or elsewhere on this website should be construed as legal advice. Although we welcome discussion, please note that CFLP is unable to give legal advice in response to comments left under this article.