As is well known, there is a general rule in civil court proceedings that the unsuccessful party will be ordered to pay the successful party’s legal costs.
Because of this rule many people will enter into family court proceedings under the impression that if they win their case the court will order the other party to pay their costs.
But this is not necessarily true.
By their nature family court proceedings differ considerably from other types of civil proceedings. Often it is not even appropriate to talk in terms of ‘winners’ and ‘losers’, especially where children are involved.
In the light of this difference the rules relating to costs in family proceedings are not the same as the rules that apply to other types of civil proceedings. In fact, for most types of family proceedings the ‘loser pays winner’s costs’ rule does not apply.
The basic rule in family proceedings is simply that the court may make such costs orders as it thinks just.
And the court will rarely, for example, think it just for a costs order to be made in a children case, unless one party’s conduct of the case was so unreasonable as to merit the making of a costs order against them.
As to financial remedy proceedings, the rule is slightly different. It states that the court will not make an order requiring one party to pay the costs of another party, but may do so where it considers it appropriate, because of the conduct of a party in relation to the proceedings (whether before or during them).
In deciding whether to make a costs order in financial remedy proceedings the court will have regard to a number of matters, including any failure by a party to comply with court rules or orders, any open settlement offers made (not any offers made ‘without prejudice’), and whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue.
Not all financial remedy proceedings are covered by this rule, for example applications for maintenance pending suit, applications to enforce financial orders, and applications for financial provision for a child.
Finally, we mentioned above that for most types of family proceedings the ‘loser pays winner’s costs’ rule does not apply. There are two types of family proceedings to which it does apply: inheritance claims against the estate of a deceased person, and trusts of land cases, mostly commonly used to resolve property disputes between cohabiting couples, to request the court to determine shares in the property, and whether or not the property should be sold.
Whether you are likely to recover your legal costs from the other party is obviously a matter that should be considered before commencing court proceedings. You should therefore seek expert legal advice before going to court.
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