Litigation misconduct: costs in family cases

There is a general rule in family law that each party bears their own costs.  As with most rules however, there are exceptions!

One such exception is litigation misconduct. If it is found by the court that a party has been guilty of litigation misconduct, the general rule can be disapplied and a cost order can be made against that party. Litigation misconduct can cover a multitude of sins and includes:

• making ill-founded applications
• attempting to mislead the court
• failing to comply with disclosure requirements
• unreasonably pursuing arguments that are bound to fail

In a recent case involving children brought under The Hague Convention, Re: P & Another (Children) (Hague Convention: Consent) (Costs), the court found that the father had been guilty of unreasonable conduct in making a wholly unnecessary application without notice and decided that an adverse costs order should be made against him. 

The mother sought costs which, in her schedule, totalled £27,316.10 including VAT. The court found that the order for costs should be reasonable and proportionate, having regard to the nature and consequences of the father’s conduct, and restricted the costs award against the father to just £4,800 including VAT.

Every case turns on its own facts. But it is important to bear in mind that even where one party successfully makes out litigation misconduct by another party, the actual costs they recover can be discounted very heavily. Here, the mother received just 17.5% of her overall costs.

As I mentioned above, the general rule in family cases is that each party bears their own costs. This particular case does not take us very far from that general rule at all, even though litigation misconduct was found by the court!  

Litigation can be very expensive, not just financially but also emotionally. If there is scope to resolve matters without involving the court then it is generally always best to explore that possibility before making a court application. 

At Birkett Long, we have a large team of specialist family lawyers who are members of Resolution and who aim to resolve disputes in a manner that minimises acrimony. We have links with local mediators who can assist with direct discussions between parties. We have four collaboratively trained lawyers who have a specialism in dealing with appropriate cases in a way that commits to settling family issues outside of the court setting. 

If you would like to avoid the costs and acrimony associated with family litigation then contact one of our team of family lawyers. We will be very happy to discuss matters with you during a free 15 minute telephone consultation. 

If you require any more information on this topic please contact me via mel.loxley@birkettlong.co.uk or 01206 217384.