During initial meetings with clients, we often inform them that they bear their own costs in family law matters. This includes when matters proceed to court. Costs awards in children proceedings are very rarely made. However, in financial remedy proceedings it is an entirely different matter. It is still difficult to obtain a cost awards, but litigation conduct can be a factor, which can have a huge impact on costs and the Final Order.

In the recent case of A Wife v A Husband [2022] EWFC 154, HHJ Vincent was faced with arguments over litigation conduct and whether a costs award was appropriate in the circumstances.

The general rule, stemming from Rule 28.3 of the Family Procedure Rules, is that the Court will not make an Order requiring one party to pay the other’s cost. However, Rule 28.3(6) says that the Court may make an Order requiring one party to pay the other party’s costs, when it is appropriate to do so, due to conduct of that party in relation to the proceedings. The Court has regard to the following factors:

a)    Any failure by a party to comply with the rules, any Order of the Court or any practice direction which the court considers relevant;

b)    Any open offer made by a party;

c)    Whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;

d)    The manner in which a party has pursued or responded to the application or a particular allegation or issue;

e)    Any other aspect of a party’s conduct in relation to proceedings which the court considers relevant; and

f)     The financial affect for the parties of any costs Order.

In the recent judgment in A Wife v A Husband, the application was brought by the wife, who was seeking a variation of periodical payments following a consent order made in 2014. We will not be considering the specific facts of the case here, although they are extremely interesting (and worth a read if you have the time),but essentially the husband’s financial circumstances had significantly improved since the consent order was made, and the wife’s position was that she was unable to meet her financial needs on the maintenance payments previously agreed.

This was all in the context of:

(a)  both parties having re-married;

(b)  the wife having moved in with the children to her new husband’s property;

(c)  the wife not having to meet any financial contributions towards the running of that her new husband’s property; and

(d)  the wife maintaining her own property as an investment.

A significant element in this case, and the judgment, is the wife’s litigation conduct, namely her lack of disclosure of having moved with the children into the new husband’s property, despite the husband writing to the wife directly, and via his solicitors about this on several occasions. The wife was evasive and not transparent with the husband about what her financial circumstances were.

Having regard to the exceptions set out Rule 28.3(6), the Judge considered the wife’s litigation conduct, which included her behaviour before the litigation even commenced.

Most significantly in this case, and as set out in paragraph 174 of the judgment:

“the wife’s litigation conduct has prevented the parties being able to enter into any meaningful negotiations, because she has not enabled the parties to reach a point where the financial landscape was clear”.

The wife, essentially, breached every deadline contained in every court Order ever made, and made no open offers to settle matters, even before the final hearing. The wife, when giving evidence, went so far as to blame her solicitors for all the breaches.

This was the wife’s application and she had a duty to provide full and frank disclosure. She was obstructive in the manner in which she conducted her case, which led to significant costs being incurred by the husband, not only in having to chase the wife and her solicitors for transparent disclosure, but also having to continuously deal with these issues and attend hearings that proved to be ineffective. The wife did not even attend a MIAM or propose any form of mediation before launching straight into litigation in January 2021, without any prior warning to the husband. The wife made her application but provided no actual disclosure as to why the application had come about, leading to significant questionnaires, to which replies were always late.

The Judge makes it clear that this could and should have been a very straightforward case, but the manner in which the wife conducted herself, and the vagary surrounding what could have been very simple questions, meant a straightforward case became protracted which led to significant costs.

The wife’s conduct was such that they could not be ignored by the Judge in this case, and a costs order against the wife was made. Looking at the case in the round, and the significant financial means available to the wife, she was ordered to pay half of the husband’s costs of the application, these being £66,626.70. The costs order itself was deemed manageable for the wife, given she has an un-utilised earning capacity and income and capital that she could call upon.

This case is an excellent example of how important it is to adhere to, and respect court deadlines. Often in family proceedings there is deemed to be some flexibility around court deadlines and often, if you are working opposite solicitors who are reasonable, you can agree extensions between yourselves. However, if extensions and missed deadlines are persistent, strategic and snowballing into such a state that no progress can be made and no negotiations can be engaged with, this case is a clear warning that a party will pay the price in terms of a costs order.  

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The family team at Sheridans can deal with all legal matters regarding your family and any questions arising from the above, in conjunction with the other teams at Sheridans. Please contact us family@sheridans.co.uk.