Costs Order
When can bad behaviour trigger an adverse costs order?
In Children Act proceedings, the general rule is that it is the Judge’s discretion whether or not to make an adverse order for costs. However, the Judge should only exercise their discretion in exceptional circumstances, or where there has been unreasonable behaviour.
This rule was reaffirmed in Re L (Costs of Children Proceedings) 2014, where the Court of Appeal allowed a mother’s appeal against an order that she pay the father’s costs in respect of all applications relating to the children since May 2012. It was held it had been wrong in principle and on the facts of the case, for the Judge to have made an order for costs against her in the first place.
The Court held that it will make an order for costs in private children proceedings, only when it is justifiable to do and there has been a formal finding based on evidence that a party’s conduct has been reprehensible. The conduct must relate to the litigation, rather than the welfare of the children.
In addition, in order to claim costs in private children proceedings, it should be made clear in advance of the hearing that costs will be sought. This is an important factor in Re L, given the lack of notice and merely serving a costs schedule in advance of the final hearing, was not deemed to provide the mother with sufficient notice of an intention to actively pursue a costs order against her.
It was held that the mother in the case of Re L, should have at least be given the opportunity to make representation at Court, either by adjourning the issue of costs or being allowed liberty to apply.
The two main areas of guidance which can be taken from the judgement in Re L, is as follows:
- The importance of affording an opponent (particularly one appearing in person) with express and consistent notice of an intention to pursue an application for costs, and
- In order to obtain a secure order for costs, it is important to ensure that findings are made by the Court as to reprehensible behaviour within the opponent’s litigation conduct. This is likely to require more than just highlighting the issues to the Court. It will require reasoned findings to be made by the Court.
Family Law Solicitors Eastbourne, Hailsham, Polegate and Meads
If you require further advice in relation to children proceedings please contact our Family Department for a free 30 minute appointment to discuss your circumstances and receive preliminary advice from one of our experienced Family Law Solicitors.
Eastbourne: 01323 727321
Hailsham: 01323 841481
Polegate: 01323 487051
Meads: 01323 407577
