The costs of being unreasonable

By 21 August 2013Children, the family courts

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.

Join the discussion 4 Comments

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  • Maureen says:

    I filed for Divorce after years of abuse due to his drinking, drugs, debts and nearly having the house repossessed 5 times. He finally walked out (after 15 years if marriage and 2 kids) and after 14 months of coming and going and living with another woman for a month and I’d had enough. I agreed to Mediation to sort out the finances and children, but he just hung up when they called him. To cut a long story short, he didn’t get a Solicitor, file any of his financial paperwork or engage in any of it. It was taken to court where it was then decided that he should be served via Bailiff again to give him the chance to have his say (I had to find him for the Bailiffs both times). The second hearing he turned up to, to try and get something out of the house (even though he remortgaged it for £50,000 and I never saw a penny). He turned up and said he wanted it adjourned to get legal advice (he had had many months previous to do this). The Court hearing was adjourned and at the third hearing, he then didn’t turn up. An order was drawn up by a Barrister (my second Barrister I was given, only because my Solicitor was too busy to go with me) that if he didn’t sign the house over to me within 28 days, then the Court would. It was also ordered that my ex husband pay Court fees, Barristers and Bailiffs. That order is dated 11th July 2012 and the house has still not been signed over to me 10th February 2014!

    As my ex husband keeps moving around and because I can’t provide an address for him even though he was ordered to tell the Court and my Solicitor if he moved, my Solicitor has told me that I will have to pay all the costs £3,900. My ex husband is also avoiding the CSA and I get no financial help from him whatsoever. He now owes me over £10,000. I’ve had to do all the chasing to the Solicitors, I’ve had to chase the Mortgage company, find him for the Bailiffs (so basically I’ve done all the work) and the Solicitors want to charge me nearly £4,000 for the privilege!

    That’s kind of just scrapping the surface, hope it makes sense.

    Should I be left with the costs that he has caused or is it up to them to bring him to justice?

    Any comments would be most appreciated.

  • James says:

    Hi
    I have had residency of my 7 year old son since 2011 and the mother has a contact order. In January 2013 I was forced to go back to court to apply for a variation of contact, acting as an LIP.
    The reasons for this application was that I found out the mother was being investigated for physical abuse against her other child, she was in a relationship with a violent man released on licence from prison for DV and arson and she had been raided by police and a cannabis farm with 34 plants discovered in one of her bedrooms.
    In each of the hearings in March, August and November 2013, when asked directly by the judge if she was in a relationship with this man, she absolutely denied it, she also denied this in the section 7 report. She was warned there would be serious consequences if she were found to be lying and it was included in each interim order that she had stated she was not in a relationship. The judge and Children Services also took a dim view of my continued raising of this issue.
    In February 2014 this man was due for release from prison and at this point the mother informed Children Services that on his release he was intending to move into her house and that they had in fact been in a relationship for the last 18 months! A child protection conference was arranged immediately and due to the mans previous criminal and violent history her daughter has been placed on a CPO.
    We had another hearing in March 2014 where it was revealed to the judge that she had been lying all the way through, I mentioned the warnings she had been given about lying and asked about the consequences, I was not given a response.
    My question is, would this continued lying in court, which has prolonged the case and caused much distress to me and my family, be enough to ask for costs?
    The mother is also receiving legal aid, would the legal aid agency consider her lying as a good enough reason to stop her funding?
    Because I knew she was lying about her relationship and felt totally out of my depth, I had borrowed a great deal of money to cover the cost of a solicitor/barrister for the March 2014 hearing which amounted to £7,500. These are the costs I would want to be awarded. It turned out that she admitted it just before the March hearing, which although I was relieved about, meant that I hadn’t in the end needed the legal representation.
    This hearing was to have been the final hearing but because of the new and serious information about the boyfriend, another hearing is scheduled for end of June. This is not likely to be the final hearing either. I cannot now afford to pay for representation for the final hearing and this is all due to,the fact that she lied.

  • Mark says:

    As a respondant to a non/molestation order and going through a contact arrangement in court, would I be expected to pay the applicants solicitors fees?

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